You drive by a policeman, and for some reason, he doesn’t much like the looks of you. Maybe your car is shabby; maybe you are. Maybe you are out late in a high-crime neighborhood. Maybe you are in a low-crime area, but you are part of a high-crime demographic group. The reason does not much matter—to him you are a suspicious character, that’s all. The policeman pulls up behind you. You will make a mistake. You say you did use your turn signal to change lanes? He didn’t see it. Or, prove to him that you did not exceed the speed limit by one mile per hour when you were busy looking at him in your rear-view mirror. You’ll never be charged with the violations—you’re just being stopped and detained to see if his hunch about you was right. Perhaps he’ll ask if you mind if he searches your car. You wouldn’t refuse unless you had something to hide, right? You have just been detained and possibly searched because someone did not like the looks of you. City of Dayton v. Erickson, 76 Ohio St. 3d 3, 12, 665 N.E.2d 1091 (1996) (Pfeifer, J. Dissenting).

Pretextual stops based on race, known as Driving While Black [DWB], is a common phenomenon which occurs when police, with a “legitimate” reason, pull over blacks when the real reason for the stop is influenced by a prejudiced, stereotyped, and racist view of that person. See David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters, 84 Minn. L. Rev. 265, 266 (1999). Though many people doubt the legality of such stops, they would be wrong in assuming that pretextual stops are illegal. Based on a number of United States Supreme Court cases, traffic offenses are a gateway for police to conduct numerous stops, searches, questioning, and drug dog sniffs. There is of course a huge amount of discretion for police to use pretextual stops to pull over certain people. Not every cop has to pull over every motorist who commits a minor traffic violation, and most cops probably do not. But if the police have some hunch that a person is suspicious, they will use a minor traffic violation to pull that person over and see whether their hunch is correct. The consequence of this is that enforcement of traffic laws are based on external factors, rather than actual law breaking. Id.

Not surprisingly, police use this discretion in a racially biased way. Police departments have capitalized on legal precedent to use traffic offenses as an excuse to stop blacks on the roadway. They engage in pretextual stops because they believe it helps catch crime, and police believe that since blacks are disproportionately arrested for certain crimes, it justifies the disproportionate number of blacks stopped. Id. at 267–86.That of course begs the argument: if police are only targeting blacks, it’s no wonder that they are disproportionately the ones arrested for crimes. The result is often the criminalization of blackness.

The problem is not one of mere perception or deep-rooted animosity between blacks and law enforcement. Numerous interviews, studies, and statistics have shown that racial profiling through the use of traffic stops is a real problem. Id. at 266–67. My own personal observations seem to correspond with the idea that blacks are disproportionately stopped for traffic violations. Working as one of the prosecutors in traffic arraignment court at the Franklin County Municipal Court, I have noticed that the racial breakdown in our traffic court is easily 60% black on any given day. This is troubling considering that, as of 2013, the population in Columbus, Ohio is 28% black and 61.5% white. State and County QuickFacts, United States Census Bureau (July 8, 2014),, http://quickfacts.census.gov/qfd/states/39/3918000.html. Certainly there are other variables at play that could account for the disproportionate number of minorities in traffic court other than DWB, but can they explain away such a big disparity.

II. Pretextual Stops Based on Race

A. Court Sanctioned Behavior

When people hear about DWB or pretextual stops in general, a common question is whether police are allowed to do this. The answer is yes. While police need a reason to pull a person over, that reason is often in the form of a minor traffic violation, which is almost always found. Harris, supra, at 310. The United States Supreme Court has said that automobiles are heavily regulated, readily mobile, and are inherently less private than the home, which means that they can be stopped and searched without a warrant if probable cause exists to believe there is evidence of crime. See Carroll v. United States, 267 U.S. 132, 161–62 (1925) (when police have probable cause, a warrantless search of the vehicle is justified when it is not practicable to get a warrant since cars can easily be moved out of the jurisdiction); California v. Carney, 471 U.S. 386, 390–393 (1985) (a motor home’s mobility and the fact that it has “a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulations inapplicable to a fixed dwelling” justifies warrant exception). The direct question of whether pretextual stops are constitutional was answered by the Supreme Court with a unanimous “yes” in Whren v. United States, 517 U.S. 806 (1996).

The question in Whren was whether a stop “of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws.” Id. at 808. The petitioners in the case were arguing for the Court to adopt the “would have” or “reasonable officer” test. Under this test, the Fourth Amendment inquiry is whether the police officer, acting reasonably, would have made the stop for the given reason. Margaret M. Lawton, The Road to Whren and Beyond: Does the “Would Have” Test Work? 57 DePaul L. Rev. 917, 917 (2008). Put differently, would the officer have made the stop absent any subjective, ulterior motives? If the answer is no, then the stop should be ruled an unconstitutional seizure.

Rejecting the petitioners’ argument, the Court instead adopted the “could have” test: could the officer have made the stop absent any subjective, ulterior motives? If the officer could have pulled the person over, then there is no constitutional violation. The Court held that so long as there has, in fact, been a traffic violation, police have probable cause to pull a person over. Whren, 517 U.S.at 819. An officer’s subjective intent in pulling the person over has no bearing on whether or not the seizure was constitutional so long as there has been a violation. Id. at 813. Essentially, police can use traffic stops to investigate their suspicions, even if those suspicions have nothing to do with the traffic violation itself, ushering in the legality of pretextual stops.

Most scholarly criticism of the Court’s decision has focused on that fact that it allows unfettered police discretion to conduct pretextual stops based on unconstitutional factors such as race. Lawton, supra, at 917. While the Court noted that “the Constitution prohibits selective enforcement of the law based on considerations such as race” statistics, studies, and interviews have proven the Court wrong in assuming that its decision would not be a vehicle for police to use race impermissibly when conducting traffic stops. Whren, 517. U.S. at 813. One well-known scholar put his dissatisfaction with the opinion this way: “The totality of the Court’s analysis in Whren is, to put it mildly, quite disappointing. By misstating its own precedents and mischaracterizing the petitioners’ central claim, the Court managed to trivialize what in fact is an exceedingly important issue regarding a pervasive law-enforcement practice.” Wayne R. LaFave, The “Routine Traffic Stop” From Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1859 (2004).

B. The Nature of the Traffic Stop

The routine traffic stop for blacks consists of multiple layers. When an officer stops a person, that person will ask why the officer pulled them over. The officer will tell that person that they have committed a traffic violation, which may be true, but not the whole truth. Chances are the violation itself is not the real reason why the person has been pulled over, and the officer knows that under Whren it is perfectly legal to do so. Harris, supra, at 299. This becomes obvious once the officer begins questioning the motorist on issues unrelated to the traffic violation such as where they are going, where they are coming from, and whether they are carrying drugs. As the interrogation is underway, the officer is undoubtedly scanning the contents of the car, hoping that there is something in plain view that will allow a probable cause search of the vehicle and/or an arrest of the person. See Horton v. California, 496 U.S. 128, 136–37 (1990) (describing the “plain view” doctrine). The officer can continue to question the person even if the person has answered all of the officer’s questions satisfactorily and can do so without giving Miranda warnings. Berkemer v. McCarty, 468 U.S. 420 (1984) (Miranda does not come into play during routine traffic stops). The officer’s questioning may seem harmless but it is actually a directed effort to keep the person talking in hopes of eliciting responses that raise suspicion. Harris, supra, at 315. At some point, the officer may order the person out of the vehicleand frisk the person for weapons—maybe it is a high crime area and the officer just wants to play it safe. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (police may order a person out of the vehicle when investigating a traffic offense); Terry v. Ohio, 392 U.S. 1, 27–31 (1968) (discussing the legality of a weapons frisk).

At this point, even if the person stopped has only committed a minor traffic violation, the officer can ask for consent to search the entire vehicle. Even without any reasonable suspicion or probable cause of another crime, the officer has the discretion to ask a person for consent and so long as it is voluntary, it is fully constitutional. SeeSchneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (consent searches are constitutionally permissible); Ohio v. Robinette 519 U.S. 33 (1996) (upholding the search even though the officer did not tell the motorist he was free to go).

Consent searches are troubling for a number of reasons. First and most obvious, if the stop was really just for a traffic violation, then there is no reason to ask to search the vehicle. Harris, supra, at 299. Second, the voluntariness aspect of consent searches is questionable. There is an inherent imbalance of power between an officer and a seized motorist on the side of the roadway. Christo Lassiter, Eliminating Consent from the Lexicon of Traffic Stop Interrogations, 27 Cap. U. L. Rev. 79, 81 (1998). Most people would be hard pressed to tell an officer “no” to a direct request. This is amplified when a black motorist is stopped by a white police officer because there is the fear that the officer will bring a greater show of force than if it was a white motorist and may feel an even lower ability to refuse to the officer’s request. Id. If the person does consent, they are left standing by the roadway while their vehicle is ransacked by the police, which is arguably outside a reasonable temporary detention for failing to use a turn signal when changing lanes. LaFave, supra, at 1893. The reality is, most people do consent, whether it is out of fear or intimidation. Interestingly, the Court has also ruled that it would be impractical to tell people that they have the right to refuse consent, essentially saying that if people knew about their rights they just might exercise them. Schneckloth v. Bustamonte, 412 U.S. 218, 226–27 (1973).

If the person does refuse consent, police may still summon a drug-sniffing dog to detect narcotics in the vehicle. The police can do this without any probable cause or even reasonable suspicion to believe there is contraband in the vehicle because the Supreme Court has determined that a dog sniff is not a search. United States v. Place, 462 U.S. 696, 707 (1983); see Harris, supra, at 318–19. If the dog alerts to the presence of drugs, probable cause has been established and a full search of the vehicle can be conducted immediately. LaFave, supra, at 1894; Harris, supra, at 318. Again, the use of a drug-sniffing dog has nothing to do with the traffic violation, which served as the whole justification for the stop in the first place. Allowing the use of drug-sniffing dogs encourages officers to conduct pretextual stops based on mere hunches of criminal behavior which is itself based on discriminatory bias. LaFave, supra, at 1896. Since officers need no reasonable suspicion or probable cause to use the drug-sniffing dog, the decision to summon one is made on an arbitrary basis. Id. Finally, if police have the option to tow a car to an impound lot based on the violation, they can search the car for inventory purposes, called the “automobile inventory” warrant exception, and any contraband found can be used to charge the motorist. South Dakota v. Opperman, 428 U.S. 364 (1976).

C. The Numbers

A national survey conducted in 2011 by the Bureau of Justice Statistics showed that a higher percentage of blacks (13%) than whites (10%) were pulled over in a traffic stop during their most recent contact with police. Lynn Langton & Matthew Durose, Bureau of Justice Statistics, Police Behavior During Traffic and Street Stops, 2011 1, 3 (2013), available at, http://www.bjs.gov/content/pub/pdf/pbtss11.pdf. Interestingly, blacks were twice as likely to be stopped and allowed to proceed with no ticket than were whites who were stopped. Id. at 7. This might account for the rather low percentage of blacks (67%) who were stopped believing that the stop was legitimate compared to whites (84%).Id. at 4. If a person is stopped and not given a ticket for the alleged traffic violation, that person might be suspicious that the reason given was in fact the real reason they were stopped. Finally, a lower percentage of whites (2%) in their most recent contact with police during a traffic stop were searched than blacks (6%).Id. at 9.

Studies that have been conducted on a state or local level show more drastic data of the DWB phenomenon. In Kansas City, a study was conducted where 2,329 drivers were surveyed regarding traffic stops. Charles Epp & Steven Maynard-Moody, “Driving While Black,” Washington Monthly (Jan. 2014), http://www.washingtonmonthly.com/magazine/january_february_2014/ten_miles_square/driving_while_black048283.php?page=all. The results showed that black drivers were three times more likely to be subjected to investigatory stops than whites, compared to clear traffic law violation stops, which showed no significant difference between blacks and whites. Id. In Ohio in the late 1990’s, data from Akron, Toledo, Dayton, and Franklin County revealed that blacks were almost three times as likely as whites to be ticketed for traffic violations. Harris, supra, at 281–88. A report regarding the Maryland State Police revealed that although black drivers made up only 17.5% of the drivers on the road, 72.9% of those stopped and searched were black. Kami Chavis Simmons, Beginning to End Racial Profiling: Definitive Solutions to an Elusive Problem, 18 Wash. & Lee J. Civil Rts. & Soc. Just. 25, 33 (2011).

Looking at Ferguson, Missouri, which has recently been a platform for discussions on race relations since the shooting of a black teenager, Michael Brown, by a white police officer, data shows unsurprisingly that DWB is common there. A study demonstrated that 86% of traffic stops involved a black motorist even though blacks make up 67% of the population. Victoria Bekiempis, Driving While Black in Ferguson, Newsweek (Aug. 19, 2014), http://www.newsweek.com/ferguson-profiling-police-courts-shooting-264744. In addition, blacks (12.1%) were twice as likely as whites (6.9%) to be searched and twice as likely to be arrested (10.4% versus 5.2%).Id. Some might try to rationalize away these numbers by arguing that if blacks are arrested at higher rates than whites it just means that blacks are more prone to crime and thus the searches are justified. They would be wrong of course since that same study reported that searches of blacks were less likely than searches of whites to result in the discovery of contraband (21.7% versus 34%).Id.

The numbers above show that DWB is not some fleeting perception but a reality for blacks in America. If police really mean what they say when they claim that their intentions are solely to combat crime, one would expect that they would look hard at the numbers and see that not only are they impermissibly racially profiling blacks, but that their doing so is not efficient crime fighting. When conducting traffic stops, police rely on the assumption that blacks are carrying drugs. The result of their actions have more negative consequences than just letting crime go undeterred: they are fostering distrust in law enforcement and the criminalization of blackness.

III. Negative Effects of Racial Profiling

A. Criminalization of Blackness

A police officer cannot determine based on a glance of the driver whether that person has outstanding warrants or does not have a driver’s license. What a police officer can determine however, is whether that person is white or black. Based on the statistics above, we know that police are using blackness as a reason to conduct a stop or other investigatory techniques in greater proportion to their population on the road. Stopping a larger number of blacks based on the biased assumption that blacks commit more crime means that being black itself is evidence of crime warranting further investigation.Harris, supra, at 292.

One of the reasons that Law enforcement disproportionately stops blacks is because police believe it is good crime fighting and a sure way to find drugs. Id. at 296–97 (noting that many believe blacks and other minorities are responsible for most drug crimes); Floyd D. Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 J. Marshall L. Rev. 439, 447 (2004); Simmons, supra, at 42. The problem with this belief, other than the fact that it is often not borne out, is that such thinking turns into a self-fulfilling prophecy. Harris, supra, at 297. When police conduct pretextual stops based on the racist assumption that blacks have drugs, then of course police will disproportionally find drugs on blacks. Thus, blacks will be charged, arrested, convicted, and jailed at disproportionate rates, which will be used to justify the pretextual and disproportionate stops, ensuring the continuance of the vicious cycle. Harris, supra, at 297; Lu-in Wang, “Suitable Targets”? Parallels and Connections Between “Hate Crimes” and “Driving While Black”, 6 Mich. J. Race & L. 209, 213 (2001); Weatherspoon, supra, at 447–48.

The criminalization of blackness certainly does extend beyond the traffic stop itself, pervading the entire justice system. Racial profiling contributes to the high incarceration rate of blacks in state and federal prison as well as local jails compared to whites. Simmons, supra, at 41–42. Since traffic stops are often used to ferret out drug activity, it is no surprise that blacks are overrepresented in this area. The criminalization of blackness is no accident. It is the product of many years of “rational” police policy and Supreme Court sanctioned behavior. The negative effects of racially profiling when making traffic stops extends far beyond the person being stopped and having their travels interrupted. It contributes to the mass incarceration of blacks in America, described by some as the New Jim Crow. See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).

B. Distrust and the Delegitimization of Law Enforcement

While the negative effects of racial profiling is often presented in terms of arrest and incarceration rates, the social and psychological aspects of being a target of the police should not go overlooked. “Pervasive, ongoing suspicious inquiry sends the unmistakable message that the targets of this inquiry look like criminals: they are second-class citizens.” Epp & Maynard-Moody, supra, http://www.washingtonmonthly.com/magazine/january_february_2014/ten_miles_square/driving_while_black048283.php?page=all. Pretextual traffic stops do nothing more than aggravate feelings of injustice and inferiority, which results in the distrust of law enforcement and lack of faith in the entire justice system. Harris, supra, at 268.

Racial profiling also leads to the stigmatization of victims, which is known as the “racial tax.” This term describes the additional burdens on minorities for their membership in a particular race. Simmons, supra, at 40–41. With blacks, one form of “tax” is the likelihood that the person will be subjected to pretextual stops more often than their white counterparts. Blacks are also “taxed” in the form of high incarceration rates, which not only has a devastating impact on the individual incarcerated, but their families as well, who are losing someone who could help contribute to the family income. Harris, supra, at 301. The impact of racial profiling on the psychological well being of the target group can also be considered a “tax.” Some members of minority groups report psychological harms of humiliation and depression as a result of being racially profiled. Simmons, supra, at 40 n.75.

If a portion of the population believes that the police cannot be trusted and that their actions are illegitimate and impermissible, the rational thing to do would be to avoid police altogether. In order to avoid being targeted by the police, blacks change their daily schedules, the way they dress, and even what cars they drive. Harris, supra, at 273–74. One of the most painful realities of racial profiling is how blacks have to instruct their children on how to behave when they come into contact with police. Black parents have to inform their children to “keep your mouth shut” and “do exactly what they tell you to do” even if they did nothing wrong. Id. While these instructions will give black children a negative view of the police, black parents feel they have no choice because they know that even a traffic stop can turn deadly.

IV. Proposed Solutions

A. Mandatory Collection and Analysis of Data on Traffic Stops

One of the most popular proposed solutions to the problem of racial profiling during traffic stops is simply to start collecting data on the problem. Many studies have been conducted on DWB but a lot has come from independent research rather than from state or federal government reporting. To achieve a comprehensive solution to the problem legislation is needed to mandate reporting of traffic stop data. If the results reveal that DWB is a real problem, then it will put to rest the idea that DWB is just a misplaced perception by minorities of police conduct. More importantly, it will encourage state and local legislatures to begin addressing the problem with concrete solutions.

During the 105th Congress, Representative John Conyers of Michigan introduced the Traffic Stops Statistics Act of 1997 to the House. H.R. 118, 105th Cong. (1997), available at http://www.gpo.gov/fdsys/pkg/BILLS-105hr118rh/pdf/BILLS-105hr118rh.pdf. The bill would have required the collection of data on each traffic stop conducted, including among others the race of the driver, whether a search was conducted, and the reason for the search, if there was one. Though the Act passed the House with bipartisan support, it died in committee in the Senate after opposition from the police arose. Harris, supra, at 320.

Mandating collection of and analysis of data regarding traffic stops is an important first step in combating racial profiling. Through objective numbers, society can move past whether the problem exists and move forward in actually addressing the problem. The federal government and the president’s administration should set an example by enacting federal legislation mandating collection and analysis of data on racial profiling. Not only will this send a message that collection of data should be a priority on the state level, it will also send the message, to borrow a recently popularized slogan, that “Black Lives Matter.” Federal legislation should also consider the possibility of providing states with federal funding to help implement collection and reporting systems on the local level. State and local government can take the same approach. Funding for police departments could be dependent on whether or not the police department is collecting data on traffic stops, with police losing a chunk of their allocated budget if they fail to comply. Harris, supra, at 322.

If federal and local legislation fails, police departments could collect this data without first being told to do so. Self-initiated data collection has many benefits because it can be tailored to local circumstances, issues, and resources. David A. Harris, Law Enforcement’s Stake in Coming to Grips with Racial Profiling, 3 Rutgers Race & L. Rev. 9 (2001) [hereinafter Law Enforcement’s Stake]. In addition, regulation developed from within the organization might result in higher compliance by those who have to follow the rules—police officers themselves. If collection and analysis of the data can be tailored to a certain police department, data can be analyzed even down to the level of an individual officer. This would have huge benefits for a person who wishes to sue an officer under the Equal Protection Clause for racial profiling because the data on that officer spanning months or years will be readily accessible to a plaintiff. Additionally, the data can be used to implement meaningful reprimands against officers who demonstrate a pattern of impermissible pretextual stops based on race.

B. Law Enforcement Training

In addition to data collection and analysis of racial profiling during traffic stops, an obvious solution to the problem would be better training, awareness, and education of officers to eliminate the practice to begin with. While this may seem like a rudimentary solution, police like everyone else have incorporated racist and stereotyped notions about certain groups into their view of the world. “When officers are called upon to make complicated and grave decisions under stressful, time-pressured conditions, they are likely to rely on these stereotypes in interpreting the behavior of others.” Wang, supra, at 220. Therefore, legislation and police department initiated programs should be implemented to reverse this automatic mode of thinking while working the beat.

The Racial Profiling Education and Awareness Act of 2002 would have authorized the United States Attorney General to implement racial profiling education and awareness programs within the Department of Justice. S. 2114, 107th Cong. (2002), available at https://www.congress.gov/bill/107th-congress/senate-bill/2114. It would have assisted state and local law enforcement agencies in implementing such programs by providing funding to ensure that the programs had the resources necessary to carry out comprehensive training and education. Federal legislation such as this will foster positive relationships between police and the communities they patrol because the educational programs can help reverse the biased assumptions that many carry with them on the job. Funding for such programs is important because police departments might otherwise be reluctant to use their limited resources for more education and training since they might prefer to allocate their funds for other things such as updated safety features on patrol cars.

Training and education programs should be comprehensive in scope and should be mandated not just at the initial training stages for new officers but should continue throughout their careers. Educational programs should include at least a basic overview of black history in America. Specifically, it should include the history of law enforcement treatment of minorities throughout the years, hopefully including the data and statistics on current racial profiling conducted by police, which can be used by the department to reiterate that such behavior is wrong and will not be tolerated. Additionally, officers should receive sensitivity training on how their stereotypical and racist biases regarding minorities may cause them to engage in racial profiling. Floyd D. Weatherspoon, Ending Racial Profiling of African-American Males in the Selective Enforcement of Laws: In Search of Viable Remedies, 65 U. Pitt. L. Rev. 721, 748 (2004). Greater emphasis should also be placed on recruitment of new officers. New testing devices designed to eliminate applicants who show racist tendencies, or the potential for developing racist tendencies, should be implemented. Id. at 749. Finally, there must be serious reprimands enforced against officers who show a pattern of racial profiling. Punishment should not come only if a plaintiff decides to sue. Police departments themselves should be using non-paid suspensions, three strikes rules, or other reprimands to send the message that not only will racial profiling not be tolerated, but that those who engage in it can ultimately lose their job. Taking responsibility for officer misconduct can go a long way in the eyes of minority communities for building trust in the police force.

If police use statistically accurate data on who is really committing crime, they can stop relying on ingrained stereotypical, racist, and prejudicial views of blacks. Crime fighting through the use of traffic stops and other techniques will then be productive. Police should use statistical data and comprehensive training to act according to the numbers. Essentially, what is needed is more intelligent and cost-efficient means of catching crime, which will in turn of course, cut back on racial profiling. By presenting police with objective numbers of who is really committing crime and at what rates, police may be more receptive to changing their practices and behaviors, rather than simply charging them with being racists, which does nothing but put them on the defensive and close opportunities to dialogue on the issue. By implementing training and education programs, police departments can stop the racial profiling cycle and begin to repair the negative effects of racial profiling.

V. Conclusion

Driving While Black is an inconvenient truth in the United States. While it is certainly important for law enforcement to have discretion when exercising their duties, too much discretion can lead to racial profiling. Supreme Court decisions, most notably Whren v. United States, have sanctioned the subjective intentions of police when deciding who to pull over for a traffic stop. Driving While Black is not simply a perception; it is a reality for blacks on the roadway. Blacks are stopped, searched, convicted, and jailed at higher rates than their white counterparts, even though they commit traffic violations at about the same rate as the rest of the population. The negative effects of racial profiling extend far beyond the traffic stop itself. It contributes to the criminalization of blackness and the distrust of police and the criminal justice system in general. Solutions to the problem include calling for mandatory collection and analysis of traffic stops and for better training, education, and awareness for police officers on racial profiling. While there is no one size fits all solution to the problem, failing to discuss and address racial profiling ensures its continuance. “[I]t is in the interest of law enforcement itself—not just the individuals stopped, questioned and searched repeatedly—to try to understand this problem, to come to grips with it, and ultimately to begin working on solutions to it.” Harris, Law Enforcment’s Stake, supra, at 11.

Erin E. Woods is a third year law student at The Ohio State University Moritz College of Law. She is currently a Certified Legal Intern at the Columbus City Attorney’s Office and President of Advocates for Children, a student group at Moritz. Erin was a recipient of the Public Interest Law Foundation Fellowship in 2013 and spent her 1L summer as a Law Clerk with the Legal Aid Society of Columbus.

]]>http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/driving-while-black-racial-profiling-and-traffic-stops/feed/0Criminalizing Revenge Porn: The Debatehttp://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/criminalizing-revenge-porn-the-debate/
http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/criminalizing-revenge-porn-the-debate/#commentsTue, 21 Apr 2015 23:47:28 +0000http://moritzlaw.osu.edu/students/groups/osjcl/?p=3899Written by Justine Larsen, a second year law student at the Ohio State University Moritz College of Law.

I. Introduction

With the recent proliferation of websites allowing third parties to post images, a new issue has appeared in the legal spotlight: revenge porn. While the name itself connotes the stereotypical scenario of a scorned ex-boyfriend or girlfriend posting illicit images and video of his or her former lover online, this term also includes hacking into a person’s computer or email and posting the discovered private photographs. See Lorelei Laird, Victims Are Taking On ‘Revenge Porn’ Websites for Posting Photos They Didn’t Consent To, ABA Journal (Nov. 1, 2013, 9:30 AM), available at http://www.abajournal.com/magazine/article/victims_are_taking_on_revenge_porn_websites_for_posting_photos_they_didnt_c/. These images or videos are generally of women and are usually posted along with identifying information, including her “real name, city and state, and often links to social media profiles. . . . Some postings have included information for contacting the victim’s work supervisor or family.” Id.

The inclusion of identifying information has serious consequences to the victim. On a professional level, many victims will be unable to find employment as the majority of employers conduct online searches on applicants and may reject applicants based on their search results. See Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 352 (2014) (indicating that “nearly 80% of employers consult search engines to collect intelligence on job applicants, and, about 70% of the time, they reject applicants due to their findings.”). Victims will also face personal repercussions, such as strains to personal relationships when family and friends view or receive the images. Laws, supra. Victims may suffer not only online harassment but could also face offline stalking and physical attack. Id. “Posting naked images next to a person’s contact information often encourages strangers to confront the person offline.” Id. See also Keats Citron & Franks, supra,at 350–51. These harms have culminated in some drastic measures by victims; for example one woman changed her name, and at least two women have killed themselves. See Jacobs, supra; See also Laws, surpa.

Erica Johnstone, co-founder of the nonprofit Without My Consent, acknowledges that “[t]here are lots of laws that we can use on the civil side, from invasion of privacy to emotional distress to harassment and stalking” to remedy victims’ harms. Clark-Flory, supra. For example, a victim can utilize copyright law to demand the removal of the image, and at least websites hosted in the United States will likely comply. Matthew Goldstein, Law Firm Founds Project to Fight ‘Revenge Porn’, N.Y. Times (Jan. 29, 2015), http://dealbook.‌nytimes.com/2015/01/29/law-firm-founds-project-to-fight-revenge-porn/. If this is the case, why is criminalization necessary?

Proponents for criminalization argue that civil remedies are insufficient for several reasons. First, victims ultimately want the removal of the images or videos from the internet. However, while copyright law may attain this ultimate goal, “a victim must publicly register a photo or video that she or he would rather no one ever see.” Id. (emphasis added). Other civil actions also “generally require further breaches of privacy to be effective.” Franks, Why We Need a Federal Criminal Law Response to Revenge Porn, Concurring Opinions, (Feb. 15, 2013), http://concurringopinions.com/archives/2013/02/why-we-need-a-federal-criminal-law-response-to-revenge-porn.html [hereinafer Why We Need a Federal Criminal Law Response]. Essentially the victim contradictorily must make the image or video public in order to remove it from the public forum.

Second, lawsuits are expensive and lengthy, and many victims cannot expend the time or afford the costs. See Clark-Flory, supra (quoting Erica Johnstone as stating that “[i]t can cost tens of thousands before even proceeding to judgment.”). See, e.g., Jacobs, supra (“I couldn’t imagine how much it would cost to bring him into civil court. As a fifth-year graduate student living on student loans, my resources were limited.”). Even assuming a victim can afford litigation, the results are often fruitless. Suing the website owner will likely fail as Section 230 of the Communications Decency Act protects the owner from liability for photos and videos received from third parties. Why We Need a Federal Criminal Law Response, supra. While the victim stands a better chance suing her ex-boyfriend for the distribution of the images, her chances of winning are low and it is unlikely that she will actually recover all her damages as many ex-boyfriends possess insufficient assets. See Mary Anne Franks, Why Revenge Porn Must Be a Crime, N.Y. Daily News (Feb. 26, 2014), http://www.nydailynews.com/opinion/revenge-porn-crime-article-1.1702725 [hereinafter, Why Revenge Porn Must Be a Crime] (noting that “the chances of success are very low.”); See also Keats Citron & Franks, supra at 349 (remarking on the defendant’s lack of assets).

Finally, even a successful suit and removal of the image fails to fully remedy the harm to the victim. As Professor Mary Anne Franks notes, “there’s literally nothing to stop the hundreds of other people that have already downloaded or re-posted her image.” Why Revenge Porn Must Be a Crime, supra. Thus she and other scholars argue that criminalization is necessary to deter the perpetrator from posting the image at all. Id. Absent criminalization, the harm to the victim can potentially continue indefinitely.

III. The problem with criminal legislation

There are three main arguments against criminalizing revenge porn. First, it is difficult to properly draft a law that is not either over-inclusive or under-inclusive in its scope. Second, revenge porn is protected speech under the First Amendment. And finally, even if criminal statutes were passed, prosecuting would cause more harm than good.

A. The difficulty in drafting the criminal statute

Opponents to legislation point to the ambiguity surrounding what exactly constitutes revenge porn. Sarah Jeong, Revenge Porn Is Bad. Criminalizing It Is Worse, Wired (Oct. 28, 2013, 9:30 AM), http://www.wired.com/2013/10/why-criminalizing-revenge-porn-is-a-bad-idea/. While we may want to penalize the vindictive ex-boyfriend who posted his ex-girlfriend’s private images, we may also inadvertently punish other more innocent conduct, such as potentially convicting “a reporter [for] publishing screencaps of Anthony Weiner’s more infamous tweets.” Id. On the other hand, if we narrow the criminal statute too much, we could fail to encompass certain forms of revenge porn, leaving some victims without legal recourse. Id. (referring to a law that “does not cover selfies sent to the vengeful ex or liability for website operators”).

Proponents have taken this over broad or too narrow concern into consideration in drafting legislation. Professor Mary Anne Franks argues that legislation “[will] not criminalize the dissemination of images voluntarily captured in public or commercial settings” and also “will not . . . criminalize disclosures made for legitimate purposes, such as the reporting of unlawful conduct or matters in the public interest.” Why Revenge Porn Must Be a Crime, supra. This ensures that the statute will not be so over broad to include innocent conduct. She and Professor Danielle Citron also urge that the statute focus on whether the victim consented to distribution of the image, Mary Anne Franks & Danielle Citron, It’s Simple: Criminalize Revenge Porn, or Let Men Punish Women They Don’t Like, The Guardian (Apr. 17, 2014, 11:40 PM),http://www.theguardian.com/commentisfree/2014/apr/17/revenge-porn-must-be-criminalized-laws, which would ensure all victims have legal protection.

B. Potential First Amendment issues

Drafting criminal legislation is further complicated by First Amendment concerns. Experts have noted that unless revenge porn falls into one of the categories of expression unprotected by the First Amendment, it must withstand strict scrutiny. See Calvert, supra, at 683 (2014). If the Supreme Court determines that revenge porn does not meet one of the current categories, the Court is unlikely to create a new category as recent lines of cases indicate. “[T]he Court seems willing to recognize a new category of unprotected expression only where the speech historically has been unprotected but not yet addressed by the Court . . . Revenge porn, of course, is a new form of expression for which there is no historical lack of protection.” Id. at 683–84 (referring to a line of casesin which “the Court rejected the invitation to carve out new categories of unprotected expression for . . . depictions of animal cruelty, violent images aimed at children and any and all false statements”).

Proponents believe that revenge porn is a form of speech that would receive lesser protection under First Amendment jurisprudence. Looking at two Supreme Court cases, one that dealt with the Federal Wire Tapping Act and another regarding the hate speech of the Westboro Baptist Church, the Court indicated a concern that the “fear of public disclosure of private conversations might well have a chilling effect on private speech,” acknowledging that “both sides of the constitutional calculus” could include free speech concerns. Keats Citron & Franks, supra, at, 378 (quoting Bartnicki v. Vopper., 532 U.S. 514, 518 & 533 (2001)). In Snyder v. Phelps, the majority noted in dicta that “sexually explicit images exemplify the sort of ‘purely private matters’ that deserve less heightened protection.” Id. at 381 (quoting Snyder v. Phelps, 131 S. Ct. 1207, 1215–17 (2011)). As long as the statute is drafted to exclude images or video in which the public has a legitimate interest (such as the Anthony Weiner example, id. at 383), the statute will target merely private matters; and without the statute, “[t]he fear of public disclosure of private intimate communications w[ill] have a ‘chilling effect on private speech.’” Danielle Citron, Debunking the First Amendment Myths Surround Revenge Porn Laws, Forbes (Apr. 18, 2014, 11:19 AM), http://www.forbes.com/sites/daniellecitron/2014/04/18/debunking-the-first-amendment-myths-surrounding-revenge-porn-laws/. Based on the Court’s previous rationales, proponents believe the free speech concerns on both ends will likely lean towards less First Amendment protection for revenge porn.

Even if these rationales fail to persuade, proponents believe that revenge porn falls under the unprotected category of obscenity. Keats Citron & Franks, supra,at 384. In considering the factors to determine whether material falls into this category, Professors Franks and Citron concluded that revenge porn is obscenity as nonconsensual disclosure of sexual images “could qualify as a ‘patently offensive representation’ of sexual conduct. . . . [and] [s]uch material offers no ‘serious literary, artistic, political, or scientific value.’” Id. at 385. Therefore a statute criminalizing revenge porn that excludes images and videos of public interest would likely withstand constitutional analysis.

C. Criminalizing revenge porn will be futile

Even if a criminal statute could withstand a constitutional challenge, opponents argue that the statutes will be virtually useless. Some indicate that these statutes will likely remain unenforced or under-enforced, noting that “[r]ape and sexual assault are already illegal,” yet Montana handed down a 30-day sentence for a rape conviction. Lux Alptraum, Why Revenge Porn Laws Are a Bad Idea, Boinkology 101 (Aug. 29, 2013), https://medium.com/boinkology-101/why-revenge-porn-laws-are-a-bad-idea-e073f340cee6 (citing Paul Vercammen & Kyung Lah, Prosecutors Weigh Appeal of 30-Day Rape Sentence in Montana, CNN (Aug. 30, 2013, 8:07 AM), http://www.cnn.com/2013/08/28/justice/montana-teacher-rape-sentence/). In other words, if a judge only gives minimal sentencing to a more physically intrusive sexual crime, how likely will he give any more than a slap on the wrist for a revenge porn violation? Others express concern that the large number of revenge porn images and videos would take time away from prosecutors to prosecute other more serious crimes. Calvert, supra, at 700 (quoting attorney Marc Randazza, who noted “Look at UGostPosted.com—there are probably 5,000 women and men on there. What are they going to do? Open up 5,000 criminal files?”)

Proponents would likely counter these concerns by pointing to the harm to the victims. Because the videos and images include personal identifying information, revenge porn victims suffer substantial personal and psychological harm with around half of the victims considering suicide due to the negative repercussions. Laws, supra. If a victim does not harm herself, she could still face injury from the strangers who now know her name and where she lives based off the identifying information provided with her photo. Keats Citron & Franks, supra, at 350. Therefore, criminalization is warranted to deter the perpetrators, especially since civil litigation is insufficient alone. Id. at 361.

IV. Conclusion

Revenge porn is a relatively new phenomenon with devastating effects to its victims. While the resulting consequences are essentially undisputed, people differ as to the correct approach to redressing the resulting harms. Some believe that civil remedies suffice. However others argue victims are unlikely to actually recover damages, and even if they do, the suit will fail to achieve their ultimate goal of removing the image from the internet. Thus the only solution is to deter the person from posting the image to begin with, which likely requires criminal penalties. Some question whether criminalizing is a valid option, noting the difficulty in drafting the statute, whether it can withstand constitutional challenges, and its futility even if it is successfully enacted. Others contend that a statute can be carefully drafted to withstand constitutional scrutiny, and unless it is enacted, many victims will remain gravely harmed with no legal recourse. These differing opinions will likely continue to impact any future legislation regarding revenge pornography.

Justine Larsen is a second year law student at The Ohio State University Moritz College of Law. She has previously interned at the United States District Court for the Southern District in Dayton, Ohio.

]]>http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/criminalizing-revenge-porn-the-debate/feed/0PERCEPTION, COMPULSION, AND THE “VICTIM-CRIMINAL”: Avoiding the Imposition of Criminality on Human Sex Trafficking Victims in Ohiohttp://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/perception-compulsion-and-the-victim-criminal-avoiding-the-imposition-of-criminality-on-human-sex-trafficking-victims-in-ohio/
http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/perception-compulsion-and-the-victim-criminal-avoiding-the-imposition-of-criminality-on-human-sex-trafficking-victims-in-ohio/#commentsTue, 21 Jan 2014 02:54:37 +0000http://moritzlaw.osu.edu/students/groups/osjcl/?p=3447Written by Nikki Trautman Baszynski, Greif Fellow in Juvenile HumanTrafficking at the Ohio State University: Moritz College of Law

INTRODUCTION

The idea of a victim-criminal is not a unique one. Certainly, there are plenty of criminals who have also been victims of crimes: a drug-dealer who is assaulted, a gang-member who is murdered, or a thief whose own property is later stolen. But survivors of human sex trafficking are different. It is by virtue of their victimization that they are also seen and treated as criminals. This image of criminality undoubtedly influences those who enforce, interpret, and apply the law. In order to most effectively recover and restore human sex trafficking victims, we must change our perspectives, practices, and laws to avoid burdening them with this dual-identity. Ohio is taking significant steps toward this goal, but significant work remains to be done.

THE CREATION OF A “VICTIM-CRIMINAL”

Compelling someone to engage in a commercial sex act is a violation of Ohio’s recently-enacted Trafficking in Persons law. O.R.C. § 2905.32. It is a crime and the compelled person is a victim of that crime. But it is also a crime to willingly engage or offer to engage in a commercial sex act. O.R.C. §§ 2907.241, 2907.24, 2907.25. Importantly, victims of trafficking are often recovered once they have offered or attempted to engage in “sexual activity for hire.” Id; see also Priscila A. Rocha, Our Backyard Slave Trade: The Result of Ohio’s Failure to Enact Comprehensive State-Level Human-Sex-Trafficking Legislation, 25 J.L. & Health 415, 437 (2012). During an initial encounter with law enforcement, whether or not a victim is deemed a victim—or is instead seen as a criminal—turns on whether or not they are perceived to be selling themselves willingly.

Unfortunately, prior to the increased focus on human trafficking and efforts to raise awareness, there seemed to exist a presumption of willingness. The inability of victims to self-identify as victims further solidified this presumption. Laura Pratt, Hidden in Plain Sight: A General Overview of the Human Trafficking Issue, 75 Tex. B.J. 762, 764 (2012). Red flags were ignored, and longstanding stereotypes contributed to the assumption that these transactions and exploitations involved freedom and choice. See Kate Mogulescu, The Public Defender As Anti-Trafficking Advocate, an Unlikely Role: How Current New York City Arrest and Prosecution Policies Systematically Criminalize Victims of Sex Trafficking, 15 CUNY L. Rev. 471, 474 (2012); Jennifer A.L. Sheldon-Sherman, The Missing “P”: Prosecution, Prevention, Protection, and Partnership in the Trafficking Victims Protection Act, 117 Penn St. L. Rev. 443, 486–89 (2012) (discussing difference in perception among law enforcement who participate in human trafficking task forces and those who do not). Perception generally defaulted to willingness, which means victims were generally seen as criminals.

Under federal law, any person under the age of 18 who is engaged in a commercial sex act is a victim of human trafficking. 22 U.S.C § 7102. The federal law does not require proof of force, fraud, or coercion if the victim is under 18, which means juvenile victims can more readily be identified as such and avoid the criminal label. A lack of willingness is essentially presumed by the law. In contrast, a victim of human trafficking in Ohio is one who has been compelled (through force, fear, duress, or intimidation) to engage in a commercial sex act—regardless of age. O.R.C. § 2905.32. So, the perception of criminality is directly tied to the perception of willingness (I use the term willingness because Ohio law defines compulsion as “overcoming the will of the victim.”). Id.

Thus, the victim-criminal identity is created by both perceptions and laws: the perception and presumption of willingness and the laws against the activity in which the victim is being compelled to engage. See generally Mogulescu, supra. Loitering, soliciting, and prostitution will very likely remain crimes in Ohio. So, in order to avoid burdening survivors with the victim-criminal identity, we must change the perception that each individual engaged in commercial sexual activity is doing so willingly and enact laws that reflect that changed perception. Ohio has taken several significant steps in this direction. Three of these steps are highlighted below.

CURRENT EFFORTS

Law Enforcement

Because of the concerted efforts of multiple federal, state, and local entities, perceptions of those engaged in what seems to be solicitation and prostitution are changing. A 17-year-old girl in a hotel room is not necessarily presumed to be there of her own accord. Those who encounter her may ask her questions, may question her answers (which is important because most trafficking victims have been trained to lie to law enforcement), and may attempt to connect her to resources and social services instead of arresting her outright. See Robert Moossy, Nat’l Inst. of Justice, Sex Trafficking: Identifying Cases and Victims (2009). But, these changes have developed because law enforcement is treating the individual as a potential victim first.

A local vice detective highlights this new perspective by explaining that officers should treat every prostitution or solicitation case as a potential human trafficking case first. Legal and Law Enforcement Panel, Ohio 5th Annual Human Trafficking Awareness Day (Jan. 9, 2014) Little harm is caused if it turns out the case doesn’t involve a trafficking victim. But, if it turns out that that it does, criminalizing the victim creates a host of obstacles.

First, treating the victim like a criminal sets him or her up for numerous difficulties. Solicitation and prostitution charges can result in jail time, fines, a criminal record which will serve as a barrier to employment and resources, and a feeling of devaluation. See Amy L. Solomon, Nat’l Inst. of Justice, In Search of a Job: Criminal Records as Barriers to Employment; Julie Lefler, Shining the Spotlight on Johns: Moving Toward Equal Treatment of Male Customers and Female Prostitutes, 10 Hastings Women’s L.J. 11, 35 (1999); Bernard P. Perlmutter, “Unchain the Children”: Gault, Therapeutic Jurisprudence, and Shackling, 9 Barry L. Rev. 1, 19 (2007). Second, it legitimates the stories and warnings traffickers feed their victims to persuade them not to seek help from authorities. Traffickers tell their victims that police will simply arrest them and throw them in jail and that they are not interested in helping them. Miami-Dade Grand Jury, Final Report 3 (Fall Term 2012), http://www.miamisao.com/publications/grand_jury/2000s/gj2012f.pdf. When police later do exactly that, it enhances the power of the trafficker and confirms his threats. This reduces the likelihood that victims will seek out help in the future or that they will cooperate with law enforcement if the trafficker is ever charged and brought to trial. This result is yet another way criminality burdens the trafficking victim.

Accordingly, altered police tactics in recovering victims and investigating these cases is essential. Rocha, supra, at 442. Ohio’s trend toward this new style of investigation echoes the federal government’s efforts to “recast child prostitution” cases as human trafficking cases. Feds Recast Child Prostitutes as Victims, Not Criminals, NPR: All Things Considered (Oct. 24, 2013), available athttp://www.npr.org/2013/10/24/240493177/feds-recast-child-prostitutes-as-victims-not-criminals. In order to effectively transform these cases, law enforcement must be trained to recognize red flags, address victim needs, and understand the culture of human sex trafficking. Recent efforts on the part of the Ohio Governor’s Office and the Ohio Attorney General’s Office to increase training of law enforcement should ensure we achieve skilled investigation of human trafficking cases and compassionate treatment of victims as victims instead of criminals. See Ohio Human Trafficking Task Force, http://humantrafficking.ohio.gov (last visited Jan. 16, 2014); Human Trafficking Commission, Ohio Attorney General, http://www.ohioattorneygeneral.gov/Individuals-and-Families/Victims/Human-Trafficking-Commission (last visited Jan. 16, 2014). This approach should also then reduce the number of arrests, the amount of jail time, and the number of criminal records for victims resulting from human sex trafficking. In short, it will allow more victims to avoid being seen and treated as criminals, too.

Safe Harbor Law and Juveniles

Ohio’s recent human trafficking legislation, House Bill 262, enacted a series of provisions known as “Safe Harbor” to safeguard against burdening victims with the criminal label. Melinda Sykes Haggerty, Human Trafficking in Ohio, Ohio Lawyer Nov./Dec. 2013, at 6, 9. Before Safe Harbor, a juvenile victim charged with loitering, solicitation, or prostitution would enter the court as a standard delinquency case: the child would admit or deny the charges and if adjudicated delinquent, the exploitation would either establish or further mar their juvenile record. Now, when a juvenile victim is charged with loitering, solicitation, or prostitution, he or she has the opportunity to avoid further victimization by the courts.

The Safe Harbor Law requires a guardian ad litem to be appointed in every case where a juvenile has been charged with loitering, solicitation, or prostitution, or where trafficking is suspected. O.R.C. § 2152.021(f)(3). It empowers the court to hold the complaint in abeyance. O.R.C. § 2152.021(f)(1). Instead of determining a punishment, the court can order the juvenile to participate in a series of programs aimed at rehabilitation. O.R.C. § 2152.021(f)(4). Significantly, if the juvenile successfully completes the program, the charges are dismissed, the records of the case are expunged, O.R.C. § 2152.021(f)(5), and the criminal identity is avoided. (Though juveniles charged with and adjudicated to have been engaged in these crimes would technically be considered “delinquent,” seeMcKeiver v. Pennsylvania, 403 U.S. 528, 571 (1971), many juveniles charged with these crimes feel as though they are treated as criminals, whether the label is legally accurate or not. Seeid. at 542–43; see also Barry C. Feld, Abolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy, 88 J. Crim. L. & Criminology 68 (1997)). Though the federal law is more ideal as it ensures every juvenile victim avoids being identified as a criminal, the Ohio Safe Harbor Law still serves as an effective way of guarding against this danger.

Record Expungement

For those victims who are not fortunate enough to avoid being cloaked with a criminal identity, HB 262 enacted a process to later remove the evidence of their exploitation from their record. O.R.C. § 2953.38(B). “Victims of sex trafficking who are forced into prostitution are frequently arrested for prostitution-related offenses and saddled with the criminal record. They are blocked from decent jobs and other prospects of rebuilding their lives. Even after they escape from sex trafficking, the criminal record victimizes them for life.” People v. G.M., 32 Misc. 3d 274, 281 (Crim. Ct. 2011). The expungement process allows human trafficking victims to expunge prior convictions and “pursue a future uninhibited by the past.” Vacating Convictions, Polaris Project, http://www.polarisproject.org/human-trafficking/sex-trafficking-in-the-us/street-prostitution (last visited Jan. 16, 2014). The expungement includes any charges (established by a preponderance of the evidence) to have been a result of their victimization. O.R.C. § 2953.38(B).

Though efforts should obviously be spent avoiding criminalization, providing a way to cast off a criminal identity moves victims closer to restoration.

NEXT STEPS

Ohio’s new laws are rooted in a shift in perspective. This new perspective acknowledges that human trafficking exists “in our own backyard” and that victims should be treated as victims, not criminals. But because the laws are so new, they are largely untested and the statutory protections remain to be interpreted in the courts. Those interpretations will be informed by perceptions of this exploitation and the victims themselves. As important as the training of law enforcement is to avoiding the criminalization of victims, those who are encountering victims within the courts must be trained, as well. Every component of the legal system must develop an awareness and understanding of this uniquely tragic form of exploitation in order to safeguard against imposing a damaging criminality on some of society’s most vulnerable victims.

Nikki Trautman Baszynski is the inaugural Greif Fellow in Juvenile Human Trafficking at the Ohio State University Moritz College of Law. She is a 2013 graduate of Moritz and spent two years clerking at the Franklin County Public Defender’s Juvenile Division before accepting her current position. Prior to law school, she served as a founding teacher at the high-performing Columbus Collegiate Academy and as a Teach for America corps member in the Bronx.

]]>http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/perception-compulsion-and-the-victim-criminal-avoiding-the-imposition-of-criminality-on-human-sex-trafficking-victims-in-ohio/feed/0Expanding Criminal Restitution and the Potential Deterrence of Civil Filings by Victims of Sex Trafficking Under the TVPRAhttp://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/expanding-criminal-restitution-and-the-potential-deterrence-of-civil-filings-by-victims-of-sex-trafficking-under-the-tvpra/
http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/expanding-criminal-restitution-and-the-potential-deterrence-of-civil-filings-by-victims-of-sex-trafficking-under-the-tvpra/#commentsSun, 19 Jan 2014 21:54:01 +0000http://moritzlaw.osu.edu/students/groups/osjcl/?p=3423Written by Adam Sims, second year law student at the Ohio State University: Moritz College of Law

The Trafficking Victims Protection Reauthorization Act [TVPRA] seeks to compensate victims of sex trafficking by both criminal and civil means, neither of which should be expanded or amended at the expense of the other.

First, the TVPRA requires that a court grant mandatory restitution to victims of human trafficking, for the “full amount of the victim’s losses,” plus the greater of the value of the victim’s services or minimum wage under the Fair Labor Standards Act when a defendant is convicted of a crime of sex or labor trafficking. 18 U.S.C. § 1593.

Second, the TVPRA includes a civil cause of action for victims of trafficking against traffickers to seek compensation for their injuries, including emotional damages, punitive damages, and attorney’s fees. 18 U.S.C. § 1595. Even though these claims are based on violations of criminal trafficking statutes, a victim may file a civil suit even if criminal charges are not brought against the defendant. Furthermore, victims may file a suit against anyone who “knowingly benefits” from trafficking, even if that knowledge is constructive.

Section 1595 civil actions benefit trafficking victims in five main ways. First, Section 1595 gives a trafficking victim control over the legal process, permitting the victim to obtain compensation when a prosecutor declines to charge the trafficker. Kathleen Kim & Kusia Hreshchyshyn, Human Trafficking Private Right of Action: Civil Rights for Trafficked Persons in the United States, 16 Hastings Women’s L.J. 1, 3, 17 (2004). Second, procedural differences in civil litigation such as the lower burden of proof and more permissive evidentiary rules typically benefit the victim. Id. Third, trafficking victims are given the important opportunity to advance their substantive civil rights in a public forum. Id. at 16.

Finally, civil awards complement criminal restitution by providing additional deterrence of trafficking in the form of “financial disincentives”. Economic deterrence is key given the low number of convictions of traffickers obtained by criminal prosecutions in the years since the TVPA’s passage. See Jennifer S. Nam, The Case of the Missing Case: Examining the Civil Right of Action for Human Trafficking Victims, 107 Colum. L. Rev. 1655, 1665–66 (2007). When obtaining an order for restitution does not ensure that it is always collected, broad availability of civil remedies should be available to help increase general deterrence of trafficking. Sangalis, at 426.
And yet to this day very few—if any—victims of sex trafficking have brought civil suits against traffickers. See, e.g., Nam, at 1673–76 (concluding that, up until 2007, none of the civil suits filed under 1595 included sex trafficking violations). Given that §1595 codifies “the most straightforward and comprehensive compensation scheme,” this lack of filings is likely not due to victims simply choosing among other alternative causes of action. Sangalis, at 427.

One explanation for the low number of civil filings by sex trafficking victims is the frequent criminal prosecution of sex trafficking cases. Nam, at 1687. Victims have less incentive to pursue civil damages after receiving restitution and may not want to pursue a civil claim after enduring the unpleasant experience of participating in the prosecution. Id. Civil rights attorneys and NGOs with limited funding may prefer to allow federal prosecutors to handle sex trafficking cases given the likelihood that the victim will receive some compensation, albeit sometimes inadequate, in a successful prosecution. Id.

Thus, Congress arguably has two viable methods of rectifying this issue to increase victim compensation: 1) by expanding the restitution awards to include emotional losses, punitive damages, and other types of recoverable damages; and 2) facilitating the filing of civil claims by providing more power and protection to the victim, as well as collaboration with and funding to civil rights attorneys and NGOs. Id. at 1692–94.

Expanding restitution, however, may undermine efforts to increase the filing of civil claims; any expansion of the restitution remedy in criminal prosecutions would likely deter a greater number of victims satisfied with restitution from seeking compensation through civil claims. Id. at 1694.

To some degree, if providing adequate and just compensation to trafficked persons is the ultimate goal, “[w]hether victims receive much needed compensation through a criminal prosecution or a civil action does not matter.” Id. Furthermore, expanding restitution would “ensure that those trafficking victims who have cooperated with a criminal prosecution, but who are unable or unwilling to file a civil action, will be appropriately compensated for their victimization.” Id. Given the fact that at least some sex trafficking victims are likely receiving monetary damages through criminal restitution while none are through civil redress, it may simply be more pragmatic to attempt to compensate victims fully through restitution rather than encouraging them to file civil suits.

Nevertheless, Congress should take caution not to increase the compensation through restitution without a corresponding effort to encourage victims, civil rights attorneys, and NGOs to bring civil suits. Furthermore, if Congress expands restitution to include emotional losses and punitive damages, it should ensure that the victim receiving restitution is given some ability to present her case without being constrained by her role as prosecutorial witness.

As noted above, one of the key advantages of civil actions, in contrast to the prosecutorial approach, is that civil can provide more appropriate compensation to the victim who has suffered exploitation by allowing her to control and direct the legal process. Kim & Hreshchyshyn, at 2–3. The current scheme, which restricts emotional losses and punitive damages to civil cases, grants the victim autonomy in making a case for the non-economic and third-party damages owed her. Unencumbered by the prosecutor’s duty to secure a conviction or decisions not to prosecute certain suspects, the victim has more freedom and input in making her claim. As plaintiff, rather than witness, she has more control in presenting non-economic damages. This autonomy is perhaps most needed in a case in which a prosecutor declines to include a potentially liable third party or knowing beneficiary in a case, but the victim should at least have some ability to frame discussion of what non-economic damages she incurred if restitution is expanded to include them.

Particularly because sex trafficking victims seem to be most susceptible to the effects of trauma that prevent them from being able to support the efforts of the prosecution, expanding restitution to cover other types of damages may result in inadequate or unjust compensation. If the victim is unable or not fully able to aid the prosecution in her voluntary capacity, the best possible case for her compensation is not presented. Whereas the prosecution may focus more on the actions of the victimizer, appropriate compensation owed should be determined in light of the victim.

Two recent proposals to amend the TVPRA call for an award of treble damages in §1595 civil actions and a process to collect and analyze data relating to the issuance and enforcement of mandatory restitution orders under §1593. S. Rep. 1733, 113th Cong. (2013); see also, H.R. 3610, 113th Cong. (2013). Although the proposed legislation also requires that the Attorney General implement a National Strategy for Combating Human Trafficking, that encourages “cooperation, coordination, and mutual support between private sector and other entities and organizations . . .” increasing the potential damage award without requiring an assessment of its impact on the availability and frequency of civil suits could undermine the goals of compensation and deterrence. Id. For instance, the number of victims that feel satisfied with the compensation granted to them in restitution may be deterred from seeking what they or others perceive to be a windfall to the plaintiff.

Accordingly, Congress should be cautious in expanding restitution for victims of sex trafficking without a corresponding emphasis on enabling the victim to bring a civil claim herself. Prosecutors will hopefully succeed in compensating victims of sex trafficking through restitution. At the very least, though, both the criminal and civil remedies are relatively underutilized and in need of further promotion, and any particularly impressive short-term gains made by expanding restitution should be tempered.

Adam is a 2L with interests in criminal and public interest law. He currently works as a law clerk with the Franklin County Public Defender.

]]>http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/expanding-criminal-restitution-and-the-potential-deterrence-of-civil-filings-by-victims-of-sex-trafficking-under-the-tvpra/feed/2The Ultimate Game Changer in the Fight Against Human Trafficking: The Internethttp://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/the-ultimate-game-changer-in-the-fight-against-human-trafficking-the-internet/
http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/the-ultimate-game-changer-in-the-fight-against-human-trafficking-the-internet/#commentsSun, 19 Jan 2014 21:53:06 +0000http://moritzlaw.osu.edu/students/groups/osjcl/?p=3431Written by Meghna Rao, second year law student at the Ohio State University: Moritz College of Law

Americans wait all year for this event. Fans race to prepare chicken wings, hot artichoke dip sizzles in the oven, and foam paraphernalia bounces around the house in support of our team of choice. Bars burst with crowds of excited, enraged, and overall optimistic men and women who anticipate three hours of guaranteed heart-wrenching entertainment. Televisions across the country are tuned in, fans soaking in every moment of the program, every commercial, leading to that climactic game changing moment, followed by the win.

The Super Bowl is highly publicized and hyped up, yet this infamous game is not just about a pigskin and the half-time show, for it has a dark secret many are unaware of as they gear up each year for February fun. The Super Bowl is the largest human trafficking incident in the United States. Eleanor Goldberg, Super Bowl is Single Largest Human Trafficking Incident in the U.S.: Attorney General, Huffington Post (Feb. 3, 2013, 9:04 AM), http://www.huffingtonpost.com/2013/02/03/super-bowl-sex-trafficking_n_2607871.html. Young underage girls are expected to sleep with twenty-five to fifty men that day, and close to 10,000 prostitutes are imported to the Super Bowl location each year. But it is not just the big events like the Super Bowl when young girls are exploited and sold, their lives trivialized to pigskins in the pimp’s own games. This happens daily, in every corner of the United States, often times without any notice. Id.

A. The Internet: the modern-day pimp’s biggest platform.

The largest game changer in our history, the Internet, has created a whole new highway for pimps, allowing them to hop right into the express lane for trafficking. Sites such as Backpage.com charge a measly five dollars per ad, and the nature of the site facilitates anonymity. A pimp can post a picture of a fourteen-year-old girl, make no reference to her age, often using code words such as “fresh, young or innocent,” and, within minutes, johns (buyers) call in from the area, asking the rates and wanting to arrange a meeting. Reporter Amber Lyons, when investigating human trafficking and interviewing a john, made the astute comment that, thanks to sites such as Backpage.com, you can order a girl as fast as you can order a pizza, sometimes even faster. Selling the Girl Next Door, (CNN television broadcast Jan. 23, 2011). Is this the gluttony we want our country known for?

In 2010 after years of being hounded by many Attorneys General and human trafficking groups, Craigslist.com finally shut down its adult services section. Ryan Singel, Craigslist Shuts Down International “Adult Services” Sections, Wired.com (Dec. 18, 2010, 3:18 PM), http://www.wired.com/business/2010/12/craigslist-adult-services-international/. Since the shut down, Backpage.com has seen a significant hike, and it seems that traffickers merely migrated to Backpage.com, a site where you can buy a couch, a car, and a girl, all with the click of your mouse. Id.

Until about five years ago, sex trafficking of both adults and children occurred in traditional venues, such as street corners, alleys, and bus stops. NPR Staff, Online and Anonymous: New Challenges to Prosecuting Sex Trafficking, NPR (Aug. 3, 2013, 6:28 PM), http://www.npr.org/2013/08/03/208664066/online-the-web-of-sex-trafficking-can-be-even-more-obscure. The Internet and social media alone, however, have completely changed the game. Id.. Ron Hosko, the assistant director of the FBI’s criminal investigative division, spoke to NPR one week after the FBI announced one of its largest human trafficking stings, in which 105 girls between the ages of thirteen and seventeen were rescued, and 150 pimps were arrested in seventy-six cities across America. Scott Neuman, FBI Official: Internet A Key Recruiting Tool for Sex Traffickers, NPR (Aug. 4, 2013, 11:32 AM), http://www.npr.org/blogs/thetwo-way/2013/08/04/208876861/fbi-official-internet-a-key-recruiting-tool-for-sex-traffickers. Hosko explains that the Internet is the key tool in recruiting child prostitutes. Id.

The FBI had been monitoring Backpage.com, as well as other websites. Pimps were discovered recruiting in affluent neighborhoods in Virginia with the mere tool of Facebook, by complimenting girls’ photos and hinting at opportunities to make money. Id. The girls were lured in under false pretenses for cash, as any fourteen-year-old girl usually wants some money for items like that new pair of Uggs or an iPhone she didn’t get for Christmas. Hosko warns, though, that shutting down Backpage is not as easy as ripping off a Band-Aid. If the site’s adult services section was to be shut down as Craigslist’s was, he predicts traffickers will most likely resort to darker corners of the Internet where regulation is close to impossible. Id. The conspicuous nature of Backpage.com, which makes ordering a girl so quick and easy, also makes tracking the transaction easier for law enforcement officers.

And it is not just the easy buying and selling that the Internet allows. A pimp can be living in suburbia and have four girls locked up in his home, forcing them to perform acts in front of a webcam for hourly rates to johns who pay online. This means the trafficking can be global without the girls so much as breathing the air outside their prison. Sunshine de Leon covered such a story for CNN, where she interviewed victim Andrea. Andrea had been lured from her home in a village in the Philippines by a lead from her cousin regarding a job for a high-paid babysitter in the city. She arrived, however, to a prisonlike cyber-sex den. “For the next few months, Andrea said she was one of seven girls, between age 13 and 18, who spent day and night satisfying the sexual fantasies of men around the world. Paying $56 per minute, male customers typed their instructions onto a computer and then watched via a live camera as the girls performed sexual acts. She said the girls were often forced to watch the men they served on screens.” Sunshine de Leon, Cyber-Sex Trafficking: a 21st Century Scourge, CNN, http://www.cnn.com/2013/07/17/world/asia/philippines-cybersex-trafficking/ (last updated July 18, 2013).

As much as the Internet has negatively facilitated sex trafficking with sites such as Backpage.com, law enforcement officials would be equally lost without it. Technology has helped to combat human trafficking by allowing law enforcement officers to identify perpetrators more easily. Law enforcement officials can track their cell phone records and credit card transactions, thus identifying sellers and mapping criminal activities. Ieva Pundita, Technology and Human Trafficking: Friends or Foes?, McCain Inst Women in Int’l Sec Blog (July 16, 2013), http://womenininternationalsecurity.wordpress.com/2013/07/16/technology-and-human-trafficking-friends-or-foes/.

B. The hotel industry: the modern-day pimps new street corner.

The pushback to this evidentiary trail is that buyers and sellers often operate with prepaid cell phones and credit cards to preserve their anonymity and leave little trace. Because of the Internet’s effect on the nature of trafficking, rather than in alleys, bus stops and on the streets, the exchange is often done in hotel rooms where traffickers believe they have anonymity. Thus, the hotel industry plays a significant role in sex trafficking, serving as the perfect venue for the pimps to deliver the underage girls to the johns—ranging from construction workers and truck drivers to doctors and engineers. A big question on the table then is whether a potential sex trafficking victim could hold these hotels liable.

Currently there is no case law on point to hold hotels liable for human trafficking and failing to report or respond. See Michelle Guelbart & Robert W. Lannan, The Hotels Role in Ending Child Sex Trafficking, EPCAT-USA, http://ahiattorneys.org/wp-content/uploads/2013/05/Addressing-Human-Trafficking-Activities-in-Hotels-Lannan-and-Guelbart.pdf (last visited Jan. 11, 2014). Common law says failing to act or failing to realize that action would facilitate aid does not impose liability. Restatement (First) of Torts § 314 (1934). However, there is a potential hook for liability in the case of special relations: “an innkeeper is under the duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm.” Id.

“The relation existing between an innkeeper and his guest is much like that existing between a common carrier and its passenger, and, while not an insurer of the personal safety of the guest, the proprietor of the hotel is held, and ought to be held, to the exercise of a very high degree of carefor the protection of his guests against the negligent acts of servants employed therein.” Rice v. Warner Hotel Co., 201 Ill. App. 530, 537 (Ill. App. Ct. 1916) (citation omitted). A “very high degree of care” includes the duty to protect against harm by third parties. Cantwell v. Peppermill, Inc., 25 Cal. App. 4th 1797 (Cal. Ct. App. 1994) (reversing dismissal of action against a restaurant and bar brought by customers injured in a bar fight).

Banks v. Hyatt Corporation et al. explains that a very high degree of care is higher than the ordinary standard of care. 722 F.2d 214 (5th Cir. 1984). In Banks, a hotel guest was shot outside the entrance to the hotel and shopping mall. Id. at 215. The mall owner had title of the ground where the shot occurred, but the hotel was held liable because it failed to take reasonable precautions to deterthe typeof criminal activity, which resulted in a guest’s injury. Id. The court explains the mall’s duty of care to invitees does not include a duty to adopt precautionary measures to reduce the general risk of criminal assault. A hotel’s duty to its guests, however, does embrace a responsibility to take reasonable precautionary measures. Id. at 217.

Reasonable precautionary measures are defined in Bass v. Gopal, Inc. 395 S.C. 129 (2011). Here, the plaintiff was shot in the leg outside a motel, which was known to be in a dangerous area. The court defines reasonable precautionary measures as protecting a guest from foreseeable harm. Id. at 139. The court identified four approaches courts have taken to assess whether a crime is foreseeable enough to require a hotel to take some action to prevent it—and, in turn, what preventative action is reasonably necessary: (1) the “imminent harm rule,” (2) the “prior or similar incidents test,” (3) the “totality of circumstances approach,” and the “balancing test” approach. Id. at 135–39.

The imminent harm rule says the harm must be imminent for the hotel to have a duty. Id. at 135. The prior incident test says foreseeability may only be established by evidence of previous crime on or near the premises. Id. at 136. Both of these approaches have been dismissed for being outdated or illogical. The totality of circumstances approach requires courts to “consider all relevant factual circumstances, including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable.” Id. at 137 (citation omitted). However, the court rejected this approach as being too burdensome for hotels, requiring security measures that would price hotels out of some neighborhoods. Id. at 138. Lastly, the balancing test approach seeks to balance the degree of foreseeability of harm against the burden of the duty imposed. Id. So, even if a hotel sees signs of human trafficking and fails to respond, the facts and scenario must pass one of these tests for liability to exist, and because these tests are not standard in every jurisdiction, liability cannot be guaranteed; other efforts must also be made via the hospitality industry. See The Hotels Role in Ending Child Sex Trafficking.

Leaders of the cause are begging hotels and companies to start taking an active stand in the fight. One primary method being advocated is the establishment of “The Code” or “The Tourism Child-Protection Code of Conduct.” Id. This plan requires companies to establish a policy against sexual exploitation of children, to train employees in child exploitation and how to report it, to include a clause in contracts of a zero tolerance policy for sexual exploitation of children, to provide information to travellers on children’s rights, the prevention of sexual exploitation and how to report suspected cases, to support and engage stakeholders in the prevention of sexual exploitation of children, and to report annually on their implementation of The Code. Id.

This process keeps all workers held accountable, aware, and in cognizance with the issue at hand: human slavery occurring under their nose. Hilton, Delta Airlines, and Wyndham are all current signatories, implementing The Code. Id.

C. The role of legislation, state and federal, is important to win this fight.

In order to truly combat this phenomenon, however, federal regulations must be put into place. Despite how prevalent Internet use by traffickers may be, the United States supports an open net policy, refusing to uphold domestic law regulating Internet space. Examples of laws that have been rejected are numerous, such as the Communications Decency Act, which attempted to criminalize “knowing” transmission of obscene messages to a child under eighteen. In Reno v. ACLU, the Supreme Court declared the act was “a content-based blanket restriction on speech.” 521 U.S. 844, 868 (1997).

The Child Online Protection Act (COPA), which criminalized “knowing or posting for commercial purposes content harmful to minors,” was enacted by congress after the holding in Reno. The Court in Ashcroft v. ACLU responded similarly, stating COPA burdened free speech rights by limiting access to some protected speech. 542 U.S. 656 (2004).

Congress finally got it right with the Children’s Internet Protection Act (CIPA), which was upheld by the Court in 2003. United States v. American Library Ass’n, Inc., 539 U.S. 194 (2003). CIPA prevents public libraries from receiving federal assistance to provide Internet access unless such libraries install software that blocks obscene images. Id. at 201. The Court held that CIPA was not in violation of the First Amendment and was a valid exercise of Congress’ spending powers. Id. at 214.

These cases are just a few examples of the struggle to regulate the internet, and because of the constitutional protections our founding fathers created for us, regulation would hinder the freedom of many others in the process of protecting the freedom of those enslaved—quite a Catch 22. Erin I. Kunze, Sex Trafficking Via the Internet: How International Agreements Address the Problem and Fail to Go Far Enough, 10 J. High Tech. L. 241, 256 (2010).

States are becoming aware of the role of online ads, “adding laws that may make it more tricky for websites like Backpage.com to continue their adult section. The state of Washington recently passed SB 6251, requiring sites to verify the ages of those involved in the adult ads, but on June 4 a federal judge issued a temporary restraining order; Backpage.com is attempting to stop the law, claiming it violates the Communications Decency Act (CDA), as well as the First and Fifth Amendments. States like New York and New Jersey are attempting to legislate in quite similar ways, specifically addressing online advertisements,” affecting sites such as Backpage. Leah Ringo, Online Sex Trafficking, Bill Track 50, http://www.billtrack50.com/blog/civil-rights/online-sex-trafficking/ (last visited Jan. 11, 2014).

D. Conclusion

So as you suit up this February for the football frenzy—warm in your home with a pizza and blanket—remember that thousands of girls are also suiting up, to be sold faster than the pizza being delivered to your door. Sex trafficking has only worsened because of the Internet, but hope has not been lost. As quickly as the Internet changed the game, we too can do the same for our daughters, wives, sisters and friends who are currently suffering from this monstrous industry. Whether it means being more aware of what you see, enacting “The Code” for your hotel or company, or merely writing to your local congressman to propose legislation such as the state laws enacted to address online advertisements. The game is not over yet, and it is up to us to find a way to win.

Meghna Rao is a second year law student at the Moritz College of Law. She has performed legal work at a Fortune 500 company as well as a midsize Ohio law firm. She also has expertise in political field work, such as grassroots organizing and fundraising.

]]>http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/the-ultimate-game-changer-in-the-fight-against-human-trafficking-the-internet/feed/2VIDEO: Author-Prisoner Jeremiah Bourgeois Speaks About His Experience with Juvenile Sentencinghttp://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/video-author-prisoner-jeremiah-bourgeois-speaks-about-his-experience-with-juvenile-sentencing/
http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/video-author-prisoner-jeremiah-bourgeois-speaks-about-his-experience-with-juvenile-sentencing/#commentsWed, 25 Sep 2013 11:17:48 +0000http://moritzlaw.osu.edu/students/groups/osjcl/?p=3299Jeremiah Bourgeois, author of “The Irrelevance of Reform” in the upcoming 11.1 Issue of the Ohio State Journal of Criminal Law, was sentenced to life in prison when he was fourteen years old. Mr. Bourgeois has served eighteen years of that sentence and in his words: “I’m never getting out of prison. I’m going to die in prison. For the act I committed when I used to think like that.”

Mr. Bourgeois recently gave a speech to prison inmates about the sentencing of juveniles and a video of that speech is provided below (Mr. Bourgeois starts speaking at 2:50). The Ohio State Journal of Criminal Law is honored to be giving such an important voice the opportunity to be heard by an even larger audience. Publishing this kind of article is why we exist.

In July of 2011, when Ohio HB 86 was passed by the legislature and signed by the governor, Ohio took a huge stride forward in defining what it means for a juvenile to be found “Incompetent to Stand Trial.” In doing so, Ohio became the 22nd state to define juvenile competency by statute. Prior to the new law, Juvenile Rule 32 provided scant guidance for the forensic evaluation of juvenile competency, holding only that a court may order a mental examination where the issue of competency has been raised. Ohio Juv. R. 32(A)(4). The problem, of course, was that there was no well-articulated standard by which competency determinations in juvenile proceedings could be made. There was case law in Ohio that provided some relief to the forensic examiner. Specifically, In re Williams, 687 N.E.2d 507, 511 (Ohio Ct. App. 1997), the court held that a juvenile court may properly adopt the adult standard in determining competency for purposes of juvenile delinquency hearings, provided that the court assesses juveniles by “juvenile rather than adult norms.” While such a finding may sound fair-minded, there were three associated issues: (1) “juvenile norms” were undefined, (2) the process for examination and disposition was not articulated, and (3) the law was silent regarding developmental immaturity relevant to juvenile incompetence to stand trial.

This situation was in marked contrast to the evaluation of competency to stand trial for adults. Every state in the union defines adult competency to stand trial in a manner consistent with the United States Supreme Court’s definition articulated in Dusky v. United States, 362 U.S. 402 (1960). This landmark case established that for adults, the defendant needed to have a “rational as well as factual understanding of the proceedings against him” or her, as well as have “sufficient present ability” to consult with one’s attorney “with a reasonable degree of rational understanding.” Id. at 402. Operationally, forensic examiners might evaluate whether the defendant had the capacity to understand the roles and function of key courtroom figures, understood basic legal procedures (e.g., the types of pleas available to a defendant), and had the requisite skills to work in a cooperative and meaningful fashion with one’s attorney (e.g., had the capacity to disclose pertinent facts, challenge prosecution witnesses, etc.).
The provisions of Ohio’s new law, in effect since 2011, established similar considerations for juveniles. First, threshold conditions must be met. That is, the forensic examiner must first decide if the juvenile has a “mental illness, intellectual disability, or developmental disability, or… a lack of mental capacity.” Ohio Rev. Code Ann. § 2152.51(A)(1) (West 2011). Second, there must be some connection between the threshold condition and problems with the functional legal capacities, i.e., the problem with understanding courtroom procedures or being able to assist in one’s defense must be “due to” the threshold condition. Id. Third, the examiner must make a careful assessment of functional legal capacities related to understanding of the legal proceedings and ability to assist in one’s defense. § 2152.56(B). Unlike the law related to adult competency to stand trial, there is not a full presumption of competence. Ohio’s new law stipulates that the presumption of competence (which is rebuttable) extends only to juveniles 14 or older, who do not have mental illness or developmental disabilities. § 2152.52(A)(2). This is consistent with research conducted by the MacArthur research network on Adolescent Development and Juvenile Justice, which found that approximately 30% of 11- to 13-year-olds and approximately 20% of 14- to 15-year-olds were as impaired in capacities relevant to adjudicative competence as are seriously mentally ill adults who would likely be considered incompetent to stand trial by clinicians who perform evaluations for courts. Laurence Steinberg, Juveniles on Trial: MacArthur Foundation Study Calls Competency into Question, 18 Crim. Just. 20, 23 (2003). A similar study by Grisso found that “[a]dolescents also tended more often than young adults to make choices (e.g., about plea agreements) that reflected compliance with authority, as well as influences of psychosocial immaturity.” Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 Law & Hum. Behav. 333, 333 (2003). These studies suggest that care must be taken to challenge misguided assumptions that 12-year-old Charlie is exactly the same as 16-year-old Rose, which we know not to be true.
Ohio’s new law, while solving certain problems, does not come without challenges. First, a clear emphasis on developmental issues, prior working experience with youth, and a good understanding of developmental considerations is essential for the examiner. Mental disorders among youth are, by and large, different than those diagnosed in adults. Since there is no statutory definition (for the purposes of competency determination) of mental illness, the forensic examiner of juveniles needs to be astute in the diagnosis of youths’ developmental capacities as well as juveniles’ mental disorders. The examiner also needs to be knowledgeable about how the complexities and nuances of these disorders may potentially impact functional legal capacities. Youths are regarded by many as “moving targets,” i.e., they change
more than they stay the same, they experience spurts, delays, and regressions, and perhaps most importantly, gains consolidated in one developmental area (e.g., cognitive maturity) may not be associated with increases in other developmental areas (e.g., interpersonal maturity). We know that reasoning capabilities increase through childhood into adolescence, and that youth differ substantially from adults in their cognitive abilities, particularly in terms of sensitivity to coercive influence and how they appraise risk. We also know that developmental improvements in reasoning are complemented by increases in knowledge gained through education and life experience, as well as by concurrent improvements in skills related to information processing, such as attention, short- and long-term memory, and organization. Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1011 (2003).[a1]
Second, in light of the significant potential impact of developmental status, the examiner of juvenile competency needs to carefully assess not just factual knowledge, but also the youth’s ability to appreciate what is known and the youth’s reasoning capacity. “Appreciation” refers to youths’ perceptions and beliefs about the implications of the legal concept in question. That is, does the youth have a sufficiently mature grasp of the significance of the situation and can reasonably apply what he/she knows to one’s own situation? “Reasoning” in this context refers to decision-making abilities often involved in decisions youths must make in juvenile court. The emphasis is not on what the youth would choose, but rather on how the youth would make decisions.
Third, the adult law is typically seen by the court as a black or white standard, i.e., one either is or is not competent. One of the statutory provisions is that if the evaluator concludes that the child’s competency is impaired but that the child may be enabled to understand the nature and objectives of the proceeding against the child and to assist in the child’s defense with reasonable accommodations, the report shall include recommendations for those reasonable accommodations that the court might make. § 2152.59(C).
Fourth, the statute has provisions for competency attainment services. § 2152.59(E)(2). It may take some time for providers of clinical treatment services to youth determined to be incompetent to catch up to the full significance of competency attainment services. At this time, Netcare is preparing to offer attainment services at an outpatient level, and Pomegranate Health Systems at a residential level. As these services begin, it will be important for clinicians to evaluate both the clinical progress in terms of threshold conditions and gains made in the functional legal capacities.

Written by Terry Kukor

Terry Kukor, Ph.D., ABPP, is board certified in forensic psychology by the American Board of Professional Psychology. He is the Director of Forensic and Specialized Assessment Services for Netcare Access in Columbus, Ohio. He serves as an adjunct professor in the Departments of Psychology at Miami University and Drexel University, and as a member of the Auxiliary Faculty, Department of Psychiatry, at The Ohio State University. Dr. Kukor has specialized in criminal forensic evaluation for more than 20 years, during which time he has performed a wide variety of forensic evaluations, including criminal responsibility, competence to stand trial, juvenile competency & waiver, violence risk assessment, and threat assessment. At the Netcare Forensic Center, he performs and supervises criminal forensic evaluations on court-referred adults and juveniles.

]]>http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/comments-on-ohios-juvenile-competency-statute/feed/0Understanding the Competency Finding of the Chardon Teen “KILLER”http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/understanding-the-competency-finding-of-the-chardon-teen-killer/
http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/understanding-the-competency-finding-of-the-chardon-teen-killer/#commentsThu, 11 Jul 2013 00:26:41 +0000http://moritzlaw.osu.edu/students/groups/osjcl/?p=3267Written by Melissa Salamon, third year law student at the Ohio State University: Moritz College of Law

Just over a year ago TJ Lane fired shots inside Chardon High School killing three of his classmates and severely wounding two others. About three months after his arrest the juvenile court held a competency hearing to determine whether or not the 17 year old was competent to stand trial. Based on the recommendations of the psychiatrist’s evaluation, Lane was found to be capable of understanding the case against him, as well as aiding in his own defense. Despite the fact that he suffers from hallucinations, psychosis, and fantasies, the court determined he was competent and shortly thereafter he was bound over to adult court. Tracey Read, Accused Chardon High Shooter T.J. Lane to Have Another Competency Evaluation, News-Herald (Willoughby, Feb. 12, 2013),http://www.news-herald.com/articles/2013/02/12/news/doc511a6930965f2349656491.txt.

In February of this year, one year after the deadly shooting, another competency hearing was held; this time in adult court. Again, Lane was found competent. Id. He then proceeded to plead guilty to the offenses charged and at his sentencing hearing stripped off his button-up shirt to reveal a t-shirt emblazoned with the word “KILLER.” Tracey Read, Chardon High School Shooter T.J. Lane Sentenced to Life Without Parole, News-Herald (Willoughby, Mar. 19, 2013), http://news-herald.com/articles/2013/03/19/news/doc51487df98d972540606375.txt.

He addressed the victims’ families and the court with vulgarities, clearly lacking any remorse for his actions. Was this youth really competent to stand trial? How did he make it through not one, but two separate competency hearings? Will a lifetime in prison better serve this teenage offender and society than the mental health services? These are the questions we might ask, but understanding the issue of juvenile competency will better help us understand how this cold-blooded teenage killer could be competent.

The juvenile justice system was established as society’s mechanism to rehabilitate youthful offenders, a focus different from the retribution of the adult system. It was based on the concept of parens patriae, allowing the court to act in place of the parents in the best interest of the child. Matthew F. Soulier & Charles L. Scott, Juveniles in Court, 18 Harv. Rev. Psychiatry 317, 318 (2010). As the system developed into a system of punishment as well as rehabilitation, concerns arose surrounding the adolescent’s’ capacity in understanding his actions and how accountable a child can be held for wrongdoing.

In 1960, the Supreme Court set the standard for adult competence in Dusky v. United States indicating that the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.” 362 U.S. 402, 402 (1960). Every state in the country has adopted this standard, though some expand upon it, setting actual concrete criteria for competence. The Dusky standard does not require that the accused be free from mental illness or have attained a particular level of intelligence, only that he be capable of understanding what he has been charged with and then to help his attorney in his own defense.

Most states extend the Dusky standard, making it applicable to juveniles in the same way that it applies to adults. Why would the court, which treats juveniles and adults with different goals in mind, apply the same standard to the two different groups? The MacArthur study brings to light the lack of development both in intelligence and understanding among children who have been charged with crimes and their inability to make decisions that will benefit themselves in the long run. Twenty-four states, including Lane’s home state of Ohio, have explicitly addressed this concern by creating a statute defining the competency standard as it specifically applies to juveniles. In Ohio “competence” and “competency” refer to a child’s ability to understand the nature and objectives of a proceeding against the child and to assist in the child’s defense. A child is incompetent if, due to mental illness, intellectual disability, or developmental disability, or otherwise due to a lack of mental capacity, the child is presently incapable of understanding the nature and objective of proceedings against the child or of assisting in the child’s defense. O.R.C § 2152.51. The new standard is important because it both analyzes children with norms associated with children and it allows for evaluators to use the catchall category “otherwise due to a lack of mental capacity” to address concerns not specifically included in mental illness, intellectual disability, or developmental disability.

The MacArthur Study found that children under the age of 15, and even more so those who are involved with the juvenile justice system at this age, have a lower ability to recognize the risks that accompany their choices and tend not to consider the long-range consequences of their decisions. Laurence Steinberg, Juveniles on Trial: MacArthur Foundation Study Calls Competency into Question, 18 Crim. Just. 20, 23 (2003). They also tended to have a lower level of intelligence and performed poorer in the abilities necessary to stand trial. Id. While Ohio and 23 other states try to address these concerns through implementation of legislation that is developmentally sensitive to the status of the accused as a child, 26 other states ignore these concerns. These states should take into account the differences declared in the MacArthur study and develop standards similar to those which states like Ohio use to evaluate competency. So, while Lane was in fact a murderer who experienced mental illness, at least the public can be assured that he was assessed under a suitable standard for juvenile competency.

Written by Melissa Salamon Melissa recently completed her second year at the Ohio State University: Moritz College of Law and is concurrently pursuing a Master’s in Public Policy at the John Glenn School of Public Affairs. She works in the Prosecution Division of the Columbus City Attorney’s Office and has previous experience working as a caseworker and a Peace Corps volunteer. Melissa hopes to pursue a career in juvenile justice.

]]>http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/understanding-the-competency-finding-of-the-chardon-teen-killer/feed/1Maximizing the Helpfulness of Experts in Legal Determinations: Lessons from the Most Recent Juvenile Competency Statutehttp://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/maximizing-the-helpfulness-of-experts-in-legal-determinations-lessons-from-the-most-recent-juvenile-competency-statute/
http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/maximizing-the-helpfulness-of-experts-in-legal-determinations-lessons-from-the-most-recent-juvenile-competency-statute/#commentsThu, 11 Jul 2013 00:25:58 +0000http://moritzlaw.osu.edu/students/groups/osjcl/?p=3203Written by Steph Fernandes, third year law student at The Ohio State University: Moritz College of Law

This year, Michigan joined the growing number of states that have specific statutes regarding juvenile competency. A Representative introduced the bill in April 2011 and, by December of 2012, both houses unanimously passed the bill. The law became effective as recently as March 28th. H.R. 4555, 96th Leg., Reg. Sess. (Mich. 2013). As more states adopt this type of legislation, courts increasingly must apply more than precedent from case law in making their determinations. Statutes include provisions that range from presumptions of competency based on the juvenile’s age to the duration of restoration before the charges must be dismissed because a juvenile is unfit to stand trial. See e.g., Ohio Rev. Code Ann. § 2152.52(A)(2); Kan. Stat. Ann. § 38-2349(B) (2006). The question becomes: do these provisions overly limit the courts’ discretion, or do the statutes provide meaningful aid to courts as they determine competency? While no statute will be perfect, the Michigan statute seems to be of great benefit in determining juveniles’ competency to stand trial. In particular, this most recent juvenile competency statute explicitly mandates that experts consider specific factors that will empower the judges who make the ultimate determination.

There are two prongs for determining the defendant’s competency. The first requires the defendant have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Dusky v. United States, 362 U.S. 402, 402 (1960). The second involves the crime and the trial. The defendant must have “a rational as well as factual understanding of the proceedings against him.” Id. The Supreme Court has not created any special competency standards for juveniles. Therefore, states like Michigan begin with this test and seek to give courts a framework that can be applied to the specific concerns that arise from juveniles standing trial.

The trial court makes the final determination of competency. However, the statute expressly mandates that a qualified forensic mental health examiner must complete the competency evaluation. This examiner is to be a psychologist, psychiatrist, or another mental health examiner who has completed the juvenile competency training program that will be endorsed within eighteen months of the new law. Mich. Comp. Laws Ann. § 330.2060(B) (West 2013). Additionally, the examiner must have training or experience in forensic evaluation procedures for juveniles, be familiar with the evaluation, diagnosis, and treatment of children and adolescents with emotional disturbance, mental illness, or developmental disabilities, possess a clinical understanding of child and adolescent development, and be cognizant of competence standards in Michigan. Id. Thus, evaluators not only serve as experts to determine the competency of the juvenile in a psychological sense, but they also have adequate knowledge about the legal standard the judge will eventually apply.

Michigan’s statute further describes the information the qualified evaluator must include in her report. The evaluator must provide details about the assessments she administered, the medical, educational, and judicial records that she reviewed, and explain any available social, clinical, developmental, and legal history. § 330.2066. The clinical assessment itself must include a mental status examination, explore a diagnosis and functional impact of a mental illness, developmental disability, or cognitive impairment, explore any effects medications would have had on the juvenile, assess the juvenile’s intelligence, and document the juvenile’s age, maturity level, developmental stage, and ability to make decisions. Id. Then, the statute incorporates the Supreme Court’s two-pronged test of competency, but establishes specific abilities that must be considered. Regarding a juvenile’s factual and rational understanding of the proceedings, the evaluator should assess the defendant’s ability to identify the roles of the participants in the adversarial process, understand the seriousness of the charges, realistically appraise the prospective outcomes, and “extend thinking into the future.” Id. When assessing the juvenile’s ability to meaningfully assist the attorney, the evaluator considers the juvenile’s ability to provide a “reasonably coherent description of facts and events pertaining to the charge”, understand the consequences of her actions and their effect on other people, her ability to coherently express herself and to behave appropriately in court, and her ability to reason logically and weigh consequences, particularly referring to pleas, waivers, and strategy. Id. By listing these areas, the statute gives the evaluator specific qualities to assess thereby helping to reduce the inherent vagueness in the Dusky standard.

On the other hand, some scholars find these statutes disconcerting because they fear the evaluator’s psychological-based report will supplant the need for a judge’s legal determination. Cox and Zapf explain prior research reveals judges agree with the experts’ opinions more than 90% of the time. Melissa L. Cox & Patricia A. Zapf, An Investigation of Discrepancies Between Mental Health Professionals and the Courts in Decisions about Competency, 28 Law & Psychol. Rev. 109, 115 (2004). The scholars warn, “[m]any trial courts appear to relinquish their role as decision-maker too readily. The courts tend to ignore the rule that experts cannot give evidence on the ultimate issue in relation to competency evaluations.” Id. at 116. In their own study of Alabama courts, the scholars found judges agreed with the mental health professionals’ determination in all but one of the three hundred and twenty-seven surveyed cases. Id. at 125. The writers fear judges are delegating the determination to the mental health professionals and neglecting their role as the “ultimate decision-maker.” Id. at 130. This delegation of authority is concerning because the scholars found some of the evaluators’ reports to be incomplete and lacking definitive diagnoses and recommendations for treatment. Id.

This criticism is valid, but the Michigan statute includes provisions that serve as safeguards, ensuring that the judge receives all necessary information before making the final determination. First, from the beginning of the evaluation, the qualified evaluator is familiar with the legal standard. Certainly, the evaluator’s expertise is clinical, as opposed to legal, but this familiarity should help the evaluator realize the framework through which the judge will view the results. It is anticipated that experts will then provide opinions with the legal standards in mind rather than focusing on competency solely as a psychological determination.

Second, Michigan’s statute clarifies the two Dusky prongs by mandating the assessment of particular qualities and abilities. This specificity assists the judges in two ways: it means all judges focus on the same factors, and it ensures the evaluators include these factors in their report. The evaluator is still permitted to rely on her expertise in creating the report and deciding issues such as if the juvenile is capable of displaying appropriate behavior in the courtroom. Thus, the evaluator is able to give her opinion regarding a juvenile’s capabilities. Then, the judge can make a determination based on the expert analysis provided. The judge still possesses discretion in making the ultimate decision, but is guaranteed the expert’s opinion regarding key issues.

Michigan, as the most recent state to fashion a juvenile competency statute, presents an effective model for obtaining feedback from experts without diminishing the judge’s role as the ultimate decision-maker. Qualified evaluators in Michigan, in addition to being trained and possessing experience regarding issues affecting competency, also have sufficient knowledge about the legal standard to help frame their analysis. Furthermore, the statute subdivides issues under each Dusky prong. The statute clarifies the objectives for judges and allows experts to provide their opinion without rendering the judge’s final determination superfluous. This statute offers guidelines without unnecessarily hampering the judge’s discretion, and this model appears to capitalize on evaluators’ expertise to effectuate the most appropriate legal competency decisions.

Written by Steph Fernandes

Steph Fernandes is a third year law student at The Ohio State University Moritz College of Law. She is passionate about working within the public interest field and hopes to work in juvenile law after graduation.

]]>http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/maximizing-the-helpfulness-of-experts-in-legal-determinations-lessons-from-the-most-recent-juvenile-competency-statute/feed/2Prisoner-Plaintiffs and the Frontiers of Frivolousness: Why Claim Value Should Play No Role in In Forma Pauperis Frivolousness Determinationshttp://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/prisoner-plaintiffs-and-the-frontiers-of-frivolousness-why-claim-value-should-play-no-role-in-in-forma-pauperis-frivolousness-determinations/
http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/prisoner-plaintiffs-and-the-frontiers-of-frivolousness-why-claim-value-should-play-no-role-in-in-forma-pauperis-frivolousness-determinations/#commentsSun, 24 Feb 2013 23:49:19 +0000http://moritzlaw.osu.edu/students/groups/osjcl/?p=3031Written by Kevin Bennardo, Teaching Fellow and Assistant Professor of Professional Practice, Louisiana State University Paul M. Hebert Law Center; J.D., The Ohio State University Moritz College of Law.

Upon a showing of indigence, a federal district court may authorize a prisoner to proceed with a non-frivolous civil action in forma pauperis. 28 U.S.C. § 1915(a), (e) (2006). The federal courts agree that the likelihood of recovery plays an important role in assessing frivolousness, but, in some circuits, so does the size of the potential recovery. In those circuits, in forma pauperis prisoner tort claims are dismissed for frivolousness, regardless of the merits of the claim, based on the court’s assessment that the claimed economic damages are insignificant. Although the law may not concern itself with trifles (“de minimis non curat lex”), this is no trifling matter. Basing frivolousness determinations on the size of the potential recovery lacks statutory grounding, ignores the economic disincentives for in forma pauperis prisoners to file spurious civil lawsuits, and insulates prison staff from recourse for visiting small economic harms on prisoners.

Before 1996, obtaining in forma pauperis status wholly exempted an indigent prisoner-plaintiff from the burden of paying any of the filing fee. Since an amendment in 1996, however, a prisoner-plaintiff proceeding in forma pauperis is required to pay the full amount of the filing fee. The benefit of the current in forma pauperis status is that the fee is payable on a deferred basis through monthly deductions from the prisoner’s trust account. 28 U.S.C. § 1915(b) (2006). Under the revised statute, the in forma pauperis plaintiff no longer escapes the responsibility to pay the filing fee, only the duty to prepay the filing fee. The district court must dismiss the case at any time—and often sua sponte before the filing of a responsive pleading—if it determines that the prisoner’s allegation of poverty was untrue, or that the action is frivolous or malicious, fails to state a claim, or seeks monetary relief against an immune defendant. Id. § 1915(e); see also 28 U.S.C. § 1915A (2006).

Thus, the contours of the frivolousness determination is of great importance to the large number of prisoners who rely on in forma pauperis status to press their civil claims in the federal courts. Construing an earlier iteration of the statute, the Supreme Court stated that “a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.” Nietzke v. Williams, 490 U.S. 319, 325 (1989) (holding that a complaint that fails to state a claim upon which relief could be granted under Fed. R. Civ. P. 12(b)(6) is not necessarily frivolous within the meaning of the in forma pauperis statute); see Denton v. Hernandez, 504 U.S. 25, 31–33 (1992). Although the purpose of the in forma pauperis statute is “to ensure that indigent litigants have meaningful access to the federal courts,” Congress recognized “that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Nietzke, 490 U.S. at 324. Thus, Congress equipped the district courts with a mechanism to dismiss such suits at the earliest juncture “to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits.” Id. at 327 (emphasis added).

The Third Circuit has construed “frivolous” in the in forma pauperis statute to include claims that are: “(1) of little or no weight, value, or importance; (2) not worthy of serious attention; or (3) trivial.” Deutsch, 67 F.3d at 1082 (holding that a prisoner’s claim seeking $4.20 in recompense for the allegedly improper confiscation of his pens was trivial and thus properly dismissed as frivolous under the in forma pauperis statute). The Third Circuit expressed concern that the in forma pauperis statute actually conferred greater access to indigent prisoner-plaintiffs by removing the economic disincentive to file claims valued less than the cost of filing the action (then $120). Id. at 1087–88. By expanding the definition of frivolous to include such economically trivial claims, the court sought to re-level the playing field. Id. at 1090 (to determine whether an in forma pauperis plaintiff’s claim is frivolous based on triviality, “[t]he relevant guidepost for a district court is whether a reasonable paying litigant would have paid the court costs and filing fees to bring the same claim”). Thus, the Third Circuit outlined a two-step procedure to test for frivolousness based on triviality: (1) determine whether the actual amount of controversy exceeds the expense of court costs and filing fees, and (2) determine whether the plaintiff has a non-economic interest at stake that would justify the litigation notwithstanding its economic insignificance. Id. at 1089–90; see alsoHornes v. United States, 2007 WL 1463028, at *9–10 (N.D. W.Va. May 17, 2007) (applying Deutsch’s “cost/recovery differential” and finding that claim for approximately $200 of property loss was frivolous because damages would not exceed the filing fee); Teal v. United States, 2007 WL 542243, at *13–14 (N.D. W.Va. Feb. 16, 2007) (same; claim valued at less than $150); Oriakhi v. Wood, 2006 WL 859543, at *8–9 (M.D. Pa. Mar. 31, 2006) (finding claim for $5.20 of property loss to be frivolous).

The Fourth Circuit followed with an opinion holding that “the amount sought in an in forma pauperis suit is a permissible factor to consider when making a frivolity determination” under the in forma pauperis statute. Nagy v. FMC Butner, 376 F.3d 252, 253 (4th Cir. 2004). In Nagy, the Fourth Circuit affirmed the district court’s finding that a prisoner’s claim alleging the negligent loss of the prisoner’s laundry was frivolous based in part on the $25 value of the missing sweat suit. Id. The claim in Nagy post-dated the amendment to the in forma pauperis statute requiring prisoner-plaintiffs to pay the full filing fee on a deferred basis. The Fourth Circuit, however, held that the amendment did not “assist the appellant” because “the introduction of a deferred payment mechanism [should not] be mistaken for an implied congressional intention that this mechanism would be a panacea for excessive in forma pauperis litigation.” Id. at 256. Thus, according to the Fourth Circuit, courts are still afforded “wide latitude” to dismiss in forma pauperis suits for frivolousness even after the 1996 amendment. Id.

The Deutsch test creates a de facto economic barrier—the price of the filing fee—that is entirely absent from the statutory language. Had Congress wished to avoid underwriting economically insignificant civil claims of indigent prisoners, it could have simply written a monetary floor into the in forma pauperis statute. Such a statutory floor would put prisoners on clear notice that in forma pauperis status will not be conferred to pursue certain claims. But for a federal court to read such a monetary floor into the term “frivolous,” dismiss a prisoner’s complaint for non-compliance with the in forma pauperis statute, and continue to debit the prisoner’s trust account to recoup the filing fee is simply unfair. To underscore the injustice, such dismissals are often accompanied by an invitation from the court for the prisoner to refile the action with the filing fee prepaid. See, e.g., Nagy, 376 F.3d at 258. Of course, should the prisoner accept the invitation she has effectively paid double the normal filing fee to maintain the action—once on a deferred basis for the dismissed “frivolous” suit and again through prepayment of the fee.

Even accepting the legitimacy of the Deutsch court’s expansion of the definition of “frivolous” to include economically “trivial” claims where prisoners were totally alleviated of the burden of paying the filing fee, the continued consideration of the economic value of the claim is no longer appropriate given the amendment requiring prisoners to pay the full filing fee on a deferred basis. The 1996 amendment requiring deferred payment of the filing fee disincentivizes prisoners from filing spurious or trivial claims in much the same way that prepayment of the filing fee does for non-indigent plaintiffs. The prisoner-plaintiff in Nagy paints a telling picture. After the Fourth Circuit affirmed the dismissal of his complaint in 2003, payments were deducted from his trust account as late as 2008 to offset the court costs of the litigation. SeeNagy v. FMC-Butner, No. 5:02-ct-00922-BO (E.D. N.C. 2003). Although he was relieved of paying the filing fee up front, the Nagy plaintiff remained on the hook for the fee and ended up paying more than the $25 value of his misplaced sweat suit toward the costs of the litigation. Id. (over the course of five years, a total of $28.82 was paid to the court from his trust account). It simply no longer makes economic sense for in forma pauperis prisoner-plaintiffs to bring claims for small monetary damages.

Although prisoners face economic disincentives to file suits for monetarily trivial losses, most prisoners likely view the expenditure of time and effort required to pursue pro se litigation as less of a barrier than non-incarcerated persons. Prisoners simply have more time on their hands and fewer alternative productive endeavors on which to spend it. Based on this lesser valuation of time, prisoners are more likely to bring pro se civil claims that most non-incarcerated persons would forego. A district court should not place itself in the position of judging the value of individual prisoners’ time and effort by applying a test that inquires whether a reasonable non-incarcerated person would bring the same claim. Not only is that standard totally absent from the in forma pauperis statute, but plaintiffs—including prisoner-plaintiffs—should be free to balance their subjective valuation of their own time against their perception of the magnitude of the civil wrong.

A negative byproduct of linking frivolousness to the monetary value of a claim is that it broadcasts to would-be tortfeasors that indigent prisoners will be unable to seek redress in the federal courts for economically small harms. Although the prison’s administrative grievance process may remain available to an aggrieved inmate, under the Deutsch test government employees are on notice that indigent prisoners generally cannot turn to the federal courts for recourse based on losses valued at less than the filing fee (currently $350, 28 U.S.C. § 1914 (2006)). Although, as explained above, a prisoner may lack an economic incentive to bring a claim valued less than the filing fee, the courts should remain open to her to press that claim if she elects to do so. Cf.Hessel v. O’Hearn, 977 F.2d 299, 303 (7th Cir. 1992) (“The size of the loss is relevant sometimes to jurisdiction, often to punishment, and always to damages, but rarely if ever to the existence of a legal wrong.”).

If indigent prisoners wish to expend their time and efforts in pursuing the righting of small wrongs, so be it. It is not the place of the judiciary to subject their claims to an “objective” valuation, especially in light of the absence of any hint of a statutory directive to do so. Rather, consistent with the Supreme Court’s interpretation, courts should confine review for frivolousness under the in forma pauperis statute to an analysis of the likely merits of the claim. Only claims that are “so defective that they should never have been brought at the outset,” Nietzke, 490 U.S. at 328, should suffer the fate of dismissal for frivolousness.

Written by Kevin Bennardo

Kevin Bennardo is a Teaching Fellow and Assistant Professor of Professional Practice at the Louisiana State University Paul M. Hebert Law Center. He is a graduate of the Ohio State University Moritz College of Law and a former executive editor of the Ohio State Journal of Criminal Law.

Prior to his appointment at the LSU Law Center, Professor Bennardo taught as an adjunct professor at the University of Richmond School of Law and worked as a staff attorney for the U.S. Court of Appeals for the Fourth Circuit. His previous experiences include serving as court counsel to the Supreme Court of the Republic of Palau, practicing with the firm of Sidley Austin LLP, and clerking for the Honorable Milton I. Shadur of the Northern District of Illinois.